Constitution Daily

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Four amendments that almost made it into the Constitution

March 23, 2014 by NCC Staff


This weekend marks the 42nd anniversary of congressional approval of the Equal Rights Amendment, which almost became part of the Constitution in the 1970s. But it wasn't the only amendment that came close.

Betty Ford’s “bloomer flag.” Source: Ford Library and Museum

The Equal Rights Amendment, or ERA, lost momentum after the House, Senate, and 30 states approved the act, which forbade discrimination based on gender. After Congress passed it by a two-thirds majority in 1972, it still needed the approval of 38 states to become a law.

The fight over the ERA mostly ended in 1982, and even its end was controversial.

The most recent amendment added to the Constitution was the 27th Amendment, which was ratified in 1992. It bars Congress from giving itself a pay raise between a fall election and a new incoming Congress. It had been on the books as a possible amendment for 203 years.

To become part of the Constitution, an amendment must be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. Then, three-quarters of the states must ratify the amendment.

Since the Bill of Rights and the first 10 amendments were ratified in the 1790s, only 17 amendments have run the gauntlet. And the 18th Amendment, which established Prohibition, was repealed.

In the past 222 years, four amendments have come close to becoming ratified.

The ERA was actually first proposed in 1923 by Alice Paul and the National Woman’s Party. It had been proposed on a regular basis in Congress for decades, but the ERA movement gathered steam in the 1960s.

The basic part of the amendment read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

By 1972, the House and the Senate had approved the ERA, with apparently wide public support, and 30 states had signed on by 1973.

But an opposition movement led by Phyllis Schlafly, a conservative author and activist, helped block additional states from ratifying the ERA. The battles between Schlafly’s STOP ERA movement and the National Organization for Women (NOW) were very public.

The amendment passed by Congress had a seven-year ratification deadline, but Congress passed a controversial extension giving states until 1982 to ratify the amendment. Five states tried to rescind their approval, and the ERA never had more than 35 of the 38 states needed for ratification.

Another proposed amendment that came very close to becoming part of the Constitution was the Titles of Nobility Amendment, or TONA. TONA sought to ban any American citizen from receiving any foreign title of nobility or receiving foreign favors, such as a pension, without congressional approval. The penalty was loss of citizenship.

By late 1812, a total of 12 states had approved TONA as the 13th Amendment and ironically, it needed a 13th state to become ratified. As the War of 1812 escalated, TONA faded away as an issue and was never ratified officially—but it kept appearing in textbooks and government documents as the 13th Amendment due to clerical errors.

Another proposed amendment was the Child Labor Amendment of 1924, which was approved by 28 states by 1937. An additional 8 states were needed at the time to ratify the proposed amendment.

The Child Labor Amendment was approved by Congress after lawmakers objected to Supreme Court rulings that appeared to support child-labor laws. It sought to give Congress power over labor laws for workers younger than the age of 18.

Unlike the ERA, the Child Labor Amendment got off to a slow start, with only six states approving the amendment by 1932. However, President Franklin Roosevelt’s administration supported the Child Labor Amendment, and another 14 states signed on in 1933.

The passage of the Fair Labor Standards Act of 1938 accomplished many of the reforms Congress sought, and the Supreme Court upheld the law.

There was no time limit set on the Child Labor Amendment, so technically it can still be voted on by the states, if needed.

And then there was the District of Columbia Voting Rights Amendment, which was proposed in the 1970s.

The proposed amendment would have granted the District of Columbia full representation in Congress and the Electoral College system, and full rights in the constitutional amendment process. It would have also superseded the 23rd Amendment, which gives the District electoral votes in presidential elections.

However, it was only ratified by 16 states, out of 38 states needed, over a seven-year period that ended in 1985.

As a footnote, two other proposed amendments came within one vote of being passed by Congress and sent on to the states for ratification.

In 2006, the Flag Desecration Amendment came within one vote of passing the Senate, after the House approved the measure in 2005.

And in 1954, the Bricker Amendment, which faced opposition by President Dwight Eisenhower, also failed by a single vote in the Senate. It sought to limit executive branch influence in making treaties.

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