Constitution Daily

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A little-known Senate subcommittee that holds great constitutional power

March 10, 2017 by Scott Bomboy

 

A lot of attention in the next few weeks will be focused on the Senate Judiciary committee as it considers Neil Gorsuch’s Supreme Court nomination. But the Judiciary committee also performs other important functions, including one subcommittee that can wield great power in rare cases.

Birch Bayh and Lyndon Johnson

The United States Senate Judiciary Subcommittee on the Constitution and Civil Justice is one of six committees within the Judiciary committee. "The Subcommittee on the Constitution and Civil Justice shall have jurisdiction over the following subject matters: constitutional amendments, constitutional rights, Federal civil rights, claims against the United States, non-immigration private claims bills, ethics in government, tort liability, including medical malpractice and product liability, legal reform generally, other appropriate matters as referred by the Chairman, and relevant oversight," the Judiciary Committee says on its official website.

The job of originating and crafting amendments in many ways is the ultimate constitutional power. There is also a parallel committee in the House, but in several past cases, the Senate committee’s leadership made several constitutional amendments a reality.

Senator Birch Bayh served as the subcommittee’s chair for nearly two decades and he drove the process that resulted in the 25th Amendment and the 26th Amendment to the Constitution. A third effort championed by Senator Bayh, the Equal Rights Amendment, was approved by the House and Senate, but it fell three states short of full ratification.

The most recent amendment, the 27th Amendment, was ratified in 1992 but it was part of the original Bill of Rights introduced by James Madison and sent to the states for approval in 1789. (There wasn’t a Senate subcommittee in place to review it.) It wasn’t ratified in 1791 with the original Bill of Rights, but no deadline was attached to the ratification process. In 1984, more states began to ratify the amendment, which defines how and when Congress can control its own compensation.

In Bayh’s case, the subcommittee had considerable work to do on the 25th Amendment, a version of which had been under consideration before President John F. Kennedy’s death in 1963. Since 1841, when Vice President John Tyler boldly claimed the title of President after William Henry Harrison’s death, the Tyler Precedent allowed Vice Presidents to assume the full powers of the presidency after that office became vacant – despite the lack of a direct constitutional power to do so in the Constitution and its amendments.

The 25th Amendment also dealt with other potential constitutional crises: the inability of a President to perform his duties in office due to illness or other reasons, and the replacement of a Vice President no longer in office.

As a young attorney, current Fordham Law professor and former dean John Feerick worked with Bayh’s subcommitee to draft the language that eventually became the 25th Amendment.  He recounted the arduous process in a 1995 law journal article, “The Twenty-Fifth Amendment: An Explanation And Defense.”

Bayh introduced Senate Joint Resolution 139 in December 1963, just months after replacing the late Estes Kefauver as subcommittee chair. (There was reported talk that the subcommittee would be phased out until Bayh, a freshman Senator, asked for the assignment.) Kefauver also had championed an amendment dealing with presidential disability.

Feerick recounted that initial committee hearings in 1964 called leading historians and experts to testify about different scenarios about the inability of a President to perform duties and the process of filling an in-term Vice Presidential vacancy. The Senate approved the subcommittee’s recommendations in September 1964, but the House didn’t act during the election year and out of respect to Speaker John McCormick, who was next in line to the presidency with no sitting Vice President in office.

In January 1965, Bayh reintroduced the bill in the Senate, with support from the newly elected President Lyndon Johnson. After a debate between Bayh and Everett Dirksen, the bill was modified and approved again by a unanimous Senate. In the House, Feerick said more than 30 possible versions of the amendment were before its Subcommitee on the Constitution. Bayh and future Supreme Court Justice Lewis Powell (as president of the American Bar Association) testified in the House. The House version passed by a 386-29 vote.

The bills were sent to a conference committee that worked out drafting differences. According to author James N. Ronan, Bayh turned to Powell to intercede with the conference committee to work out disputes about the drafting language. The revised amendment was passed by a House voice vote and a 68-5 margin in the Senate and sent to the states for ratification on July 6, 1965. Nevada became the 38th state to approve the amendment on February 10, 1967, completing the process.

“The Twenty-fifth Amendment is the product of extensive debate and discussion, in which full account was taken of the history of presidential succession and the many worthy suggestions offered for improvements in the succession framework. The amendment provides an approach to presidential succession which allows for an effective transfer of power in all cases of presidential inability,” Feerick concluded.

Bayh also advocated for a lower voting age for Americans while he was a state legislator. The 26th Amendment came about quickly and through a much-different process. Congress decided in 1970 to lower the national voting age from 21 to 18 during the Vietnam War through an act of legislation. However, the Supreme Court in December 1970 decided on a challenge to the law, in Oregon v. Mitchell, Congress only had the power to change the voting age in federal elections. With a presidential election on the horizon and election officials facing the costs of accounting for two sets of voting ages, Congress acted in record time getting the 26th Amendment in the hands of the state to ratify.

Bayh’s subcommittee worked on drafting language after the Court decision and by February 1971 it had issued an 81-page report recommending the amendment. "There is no basis in logic, in policy or in practice for denying 18-year-olds the right to vote in state and local elections when they may vote in federal elections," the subcommitee concluded. Within six weeks, the House and Senate approved the amendment’s language and send it to the 50 states for consideration. The 26th Amendment was ratified about three months later – the quickest ratification process ever – when North Carolina approved it.

Since then, two other proposed amendments have made it out of the subcommittee to be approved by the full House and Senate, only to fall short in the ratification process. Bayh proposed a Senate version of the Equal Rights Amendment and held subcommittee hearings in May 1970. (The first version of the ERA had been proposed in Congress in 1923.) In March 1972, the Senate approved the ERA after it had passed in the House.  At the time, Bayh thought the ERA would be ratified within two years, but it failed to get enough support over the next decade.

And in 1978, the House and Senate approved an amendment to grant congressional voting rights to the District of Columbia after hearing were held in Bayh’s subcommittee. The proposed amendment repealed the 23rd Amendment and gave the federal District two United States Senators and a representative in the House. However, only 16 states ratified the amendment before its approval period expired in 1985.

 

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