- The Washington Times - Sunday, November 13, 2011

With no fanfare, the country in August quietly passed a peculiar milestone: The 14,746th day since Congress last proposed a successful amendment to the Constitution, officially becoming the second-longest such dry spell in history and raising questions about when, if ever, the next amendment will pass.

The drought comes even as the Constitution itself has received renewed attention from the tea party movement. With Congress polling at historically low approval ratings, and calls for major changes piling up, one would think the founding document would be ripe for revision.

Instead it’s just the opposite.

Even with a slight uptick this year, the trend is toward ever fewer amendments even being offered. John R. Vile, a political scientist who wrote a book on amendments, said that just 72 were proposed in the last Congress, down from an average of more than 500 in each Congress during the 1960s, 400 per Congress in the 1970s and more than 150 per Congress in the 1990s.

“We very well may have seen the last amendment to the U.S. Constitution for a very, very long period of time,” said Gregory Watson, the man who spearheaded ratification of the 27th Amendment, the most recent addition. “The partisan divide is so bitter, and there’s so much acrimony between the two political parties. There’s just too much institutional gridlock for anything to get through unless it’s just so noncontroversial.”

Still, members of the House of Representatives are about to give it a try.

Republicans this week will send to the floor a balanced-budget amendment, sponsored by Rep. Bob Goodlatte of Virginia, that would force the federal government to balance the books and require a “supermajority” vote in Congress to raise the debt limit.

A similar balanced-budget amendment passed the Senate in 1982, only to die in the House. Another version passed the House in 1995, only to fall one vote shy of approval in the Senate.

This time, Democratic leaders agreed to hold a Senate vote as part of this past summer’s debt deal, but they are working against the amendment, saying that balancing the budget now would be economically disastrous.

Original intent

The framers of the Constitution, realizing that they would not get everything right, intended for there to be amendments, and laid out the procedures in Article V. But they set a high bar: It takes a two-thirds vote of each chamber of Congress to propose an amendment to the states, and then ratification requires approval in the legislatures or in ratifying conventions inthree-fourths of the states.

Alternatively, the Constitution allows for the legislatures of two-thirds of the states to call for a constitutional convention, whose work would be submitted back to the states for ratification. That route has never been used, although some states have approved resolutions calling for such a convention.

Of the 27 amendments, 10 — the Bill of Rights — were proposed by Congress in 1789 and ratified in 1791.

That means in the subsequent 220 years, just 17 have been adopted, for an average of about one every 13 years. But the pace of subsequent amendments has been anything but regular.

Sixty-two years passed between the time the 12th Amendment was proposed to the states in 1803 and the 13th Amendment was proposed in 1865, as the Civil War was winding down — the longest drought in history. But the 13th Amendment was followed quickly by the 14th Amendment, proposed in 1866, and the 15th Amendment just three years later.

The Constitution remained unchanged for 40 years until the Progressive Era Congress proposed the 16th Amendment in 1909 authorizing a national income tax. That was followed in short order by the 17th Amendment (direct election of senators); the 18th Amendment (Prohibition); the 19th Amendment (voting rights for women); the 20th Amendment (setting a new inauguration date and a means of filling vacancies); and the 21st Amendment (repeal of Prohibition) in 1933.

The key, said Daniel Okrent, who has written “Last Call,” a rollicking account of the 18th and 21st amendments, was having a political majority pushing in the same direction.

For the Civil War and Reconstruction amendments, white Southerners had been disenfranchised, so Northern lawmakers could will their amendments through Congress. The Progressive Era is more complex, but even then the legislatures were dominated by rural and farming interests who favored the income tax and detested alcohol.

In the case of Prohibition, the political coalition was odd. It combined the likes of Progressives, women’s suffragists and the Ku Klux Klan, all pushing for the same cause, and was guided by the genius of Wayne Wheeler, who as the political mastermind of the Anti-Saloon League had the ear of governors, congressmen and presidents.

Mr. Okrent said that sort of coalition just isn’t in the offing in today’s political climate.

“I don’t think they could agree that Monday comes after Sunday. Of all times, certainly in living memory, never has the country been more clearly divided and unable to reach a consensus on any issue,” he said.

Mr. Okrent said the balance of political power that boosted Prohibition didn’t change until Supreme Court decisions in the middle of the last century enshrined the principle of “one man, one vote” and erased the rural domination of state legislatures.

In fact, the only time the state ratifying conventions have been used to adopt an amendment was for the 21st Amendment repealing Prohibition. Congress, wary that repeal wouldn’t make it through the still rural-dominated legislatures, specifically called for state conventions to consider the amendment, which was ratified in less than a year — at the time, the second-shortest ratification in history.

In the search for reasons for the current drought, some academics point to the rising power of the Supreme Court, saying the amendment process has grown rusty as advocates turn to the courts rather than Congress. Indeed, last week’s ruling by a federal appeals court made that point when Judge Laurence H. Silberman upheld President Obama’s 2010 health care initiative, saying it would have been unconstitutional in the founders’ minds, but not anymore.

“The Framers, in using the term ‘commerce among the states,’ obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction,” the judge wrote.

Others argue that the country is merely in an amendment pause, just as it was before the Civil War and the Progressive Era, both of which produced a flurry of consequential amendments.

“Many people had given up on the efficacy of the process in the period from 1804 to 1865 and from 1870 to 1913, yet the process came roaring back in both cases, in one case as the result of the Civil War and in the other as a result of ideas associated with the Progressive Movement,” said Mr. Vile, the political scientist at Middle Tennessee State University. “The court has certainly played a more persistent role in constitutional interpretation than in some times in the past, but we have had consequential court decisions throughout our history, so I’m not sure the basics have changed.”

R.B. Bernstein, distinguished adjunct professor at New York Law School, said the long period of stasis since the last amendment owes more to the state of American politics and the issues facing lawmakers.

“There is no sense right now among the American people or among the politicians that there is some problem that requires an amendment,” said Mr. Bernstein, author of “The Founding Fathers Reconsidered.”

“Opening up the cases in the National Archives and adding text to the Constitution is a big deal. It’s serious. It’s one of the most serious things the American people can do. That’s why the founding guys made Article V so hard to use,” he added.

Conflict of interest

For many, the Constitution is a document encased in glass that should be broken only in case of emergency.

Take Sen. Patrick J. Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee who, earlier in his decades-long career, regularly co-sponsored amendments including one to eliminate the Electoral College and another to try to restart the stalled Equal Rights Amendment (ERA). But Mr. Leahy sponsored his last amendment in the 104th Congress, 15 years ago, and earlier this year took to the Senate floor to say that adding a balanced budget amendment would “defile the Constitution.”

“Over the years, I have become more and more skeptical of recent efforts to amend the design that established the fundamental liberties and protections for all Americans,” Mr. Leahy said during the balanced-budget floor debate. “I believe the founders did a pretty good job designing our fundamental charter.”

That is the case at all stages of the process: not only in Washington, where Congress is reluctant to propose amendments, but right down to state legislatures, where six amendments that won the approval of Congress have failed to win ratification.

The most bruising of those failures was over the ERA, first proposed by Congress in 1972. Thirty-five states ratified the amendment, but it stalled there, three shy of the total needed.

One of those failures was Virginia, where supporters tried repeatedly — and even came close in 1980, only to have state Sen. John Chichester, at the time a newcomer to the chamber, use a curious parliamentary strategy to block it.

Under Virginia’s rules, constitutional amendments needed an absolute majority, or 21 senators, to be ratified. The ERA split the Senate, with 20 senators favoring it and 20 opposing it, which should have kicked the question to Lt. Gov. Charles S. Robb, a Democrat who held the tie-breaking vote and supported the amendment.

But when time came for the vote Mr. Chichester abstained, citing a conflict of interest. That meant the final tally was 20-19 in favor — but without a tie, Mr. Robb was unable to cast his vote, leaving the amendment short of the 21 votes needed under the state’s rules.

The stunt made national headlines.

Reached by phone this year, Mr. Chichester, who has since become a pariah among many Virginia Republicans for his fight to increase spending and taxes, said he didn’t recall much about the incident or his reasoning.

“That’s all vague,” he said.

Lucky No. 27

The last amendment successfully proposed by Congress was the 26th, which set 18 as the national voting age. It was sent to the states for ratification on March 23, 1971, and was ratified by the 38th state 100 days later.

But it’s not the last amendment in the Constitution. That honor belongs to the 27th Amendment, which says when Congress votes to raise its pay, the increase cannot take effect until the next Congress is seated.

The fight was led not by a major national political figure but by Mr. Watson, who as a student at the University of Texas in 1982 wrote a college paper laying out the case for ratifying the long-forgotten amendment, which Congress first submitted to the states in 1789, along with the other 10 amendments that became the Bill of Rights.

It was ratified by six of the original 13 states, but stalled, never gaining the three-fourths needed.

When Mr. Watson wrote his paper, three other states had ratified it, but the records for one of those — Kentucky — had been lost, and its approval wasn’t rediscovered until well after Mr. Watson’s crusade resulted in enough states ratifying it. Mr. Watson began a letter-writing campaign and it caught fire, fueled in part by anti-Washington sentiment and by the novelty of ratifying something so old.

On May 18, 1992, the archivist of the U.S. certified the amendment’s ratification — pinpointing the official date at May 7 of that year, which is when Michigan and New Jersey ratified it, 74,003 days after it was first proposed by Congress.

“I got a ‘C’ on that paper,” Mr. Watson told The Washington Times. “The professor basically said to me the amendment was too old and she just was not of the opinion it could ever become part of the Constitution, and even if it could, someone like me couldn’t be the one to get it accomplished.”

Mr. Watson said that from his standpoint, the main reason for the lack of amendments in recent decades has more to do with voters’ disengagement from their government.

“It’s rather unfortunate. I think the people are very detached from the process, and they don’t really think a lot about it,” he said.

He said one way to get voters more involved would be to move to a system where Congress would propose amendments and then, rather than going to each state for ratification, hold a national referendum.

“I think it’s kind of stagnation and the gridlock among lawmakers. I think the American public sees a number of amendments they would like to see adopted,” he said, naming a term-limit proposal and a balanced budget amendment as ones that would gain broad support if put directly to voters.



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