Constitution Daily

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What will be the next constitutional amendment?

July 30, 2012 by Scott Bomboy


As we head into a fall election season with a lot of public debate about heated issues, we look at five issues that could get the ultimate elective test: a vote on becoming a constitutional amendment.

Just how hard is it to get an issue permanently written into the Constitution as an amendment? It’s not impossible, but amendments are exceedingly rare.

The last amendment passed was the 27th Amendment, which was approved in 1992. It bars Congress from giving itself a pay raise between a fall election and a new incoming Congress.

The 27th amendment was an outlier for several reasons. It had been on the books as a possible amendment for 203 years--it was the original Second Amendment. A campaign by a college student in the 1980s got state legislatures to finally act on the 27th Amendment, since pay raises for politicians were unpopular.

Michigan put the amendment over the top in May 1992 as the 38th state to approve it, but Congress still squabbled about its legality.

It's tough to be an amendment

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.

It is up to the states to approve a proposed amendment, with three quarters of the state’s voting to ratifying it. State legislatures almost always vote to ratify or reject the amendment, although in one case--the 21st Amendment to repeal Prohibition--state conventions were used in the process.

That said, since the Bill of Rights and the first 10 amendments passed in 1791, only 17 amendments have run the gauntlet. And the 18th Amendment, which established Prohibition, was repealed.

The next five amendments?

In the past 221 years, several amendments have come close to becoming ratified.

The Equal Rights Amendment received approval from 35 states before it stalled in 1982. The ERA forbade discrimination based on gender, and many local and state laws have passed since then to effectively put parts of the ERA into practice.

Another proposed amendment was the Child Labor Amendment of 1924, which was approved by 28 states.

Currently, interest groups threaten to enact constitutional amendments whenever there is a controversial political or legal decision.

Here are five ideas that have been discussed in recent months:

1. Overturning the Citizens United decision

The 2010 Supreme Court decision involving unlimited corporate donations to national political campaigns has led to some reformers to propose an amendment to bar such campaign funding. Of course, House and Senate members who directly benefit from campaign contributions would need to vote for such an amendment.

2. Overturning the Affordable Care Act

Conservative outrage over the recent Supreme Court decision about health care led some opponents to demand an amendment. Realistically, the battle over health care will be in Congress in 2012, as the Republicans hope to more political support to change the law.

3. The Balanced Budget Amendment

A constitutional amendment to force Congress to balance the federal budget annually has been proposed before. It was almost passed by Congress in 1995, but hasn't gained traction since.

4. Same-Sex Marriage Amendment

Supporters on both sides of the same-sex marriage issue have demanded a constitutional amendment to make their policies the law of the land. The Supreme Court is expected to take up the issue at some point, so any amendment would be far in the future and would need to get by a divided Congress.

5. Changes to the Electoral College

Since the 2000 election, there has been an ongoing debate about the effectiveness of the Electoral College, and if the president and vice president should be elected by a direct popular vote. Another issue is the role of electors who actually vote for the president after the popular election. A “faithless” elector could switch votes within the Electoral College, affecting a close presidential election. There have been at least nine faithless electors since 1796, but none affected the outcome of an election.

Of all the scenarios above, only the faithless elector scenario might have enough widespread support to get two-thirds approval in Congress.

Another possibility would be the resurrection of the District of Columbia Voting Rights Amendment, which expired as a proposed amendment in 1985.

The District of Columbia Voting Rights Amendment had been approved by 16 states when it expired. It gave the District voting representation in the House and Senate. But with 75 percent of District of Columbia voters registered as Democrats, such an amendment would be a long shot in Congress.

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What’s the court doing with same-sex marriage cases? Constitution Check: Will the politics of 2012 influence the constitutionality of gay marriage? What will be the next constitutional amendment?

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