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 And the 18th Amendment, which established Prohibition, was repealed.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 221 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.

Constitution Daily covered the TONA saga in detail late last year, since some people are convinced TONA was actually ratified by the required number of states back in 1819, but the paperwork was lost by the federal government.

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.

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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.

Constitutional law professor Sanford Levinson says our Constitution is badly in need of an overhaul. Lyle Denniston evaluates the need for more conversation—or maybe a national convention.

The statement at issue:

“Critics across the spectrum call the American political system dysfunctional, even pathological.  What they don’t mention, though, is the role of the Constitution itself in generating the pathology. … Most contemporary Americans … have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well.  Instead, the Constitution is enveloped in near religious veneration. … We are long overdue for a serious discussion about [the Constitution’s] own role in creating the depressed (and depressing) state of American politics.”

—University of Texas constitutional law professor Sanford Levinson, in an op-ed column May 29 in The New York Times, headlined;“Our Imbecilic Constitution: Why is our government so dysfunctional?  Look back to 1787.”

We checked the Constitution, and…

A national constitution that has lasted 225 years, with only 27 formal amendments, very likely has done a fairly good job of making and maintaining a functional government.  One does not have to hold the American Constitution in religious awe to believe that.  The fact that it has survived multiple crises of governance—some of which no other system of government might have weathered—probably says a good deal about its workability.

But if one has followed the career of Professor Levinson, a creative but severe critic of the Constitution as presently written, one might be tempted to conclude that the need for reforming the basic document has never been more urgent.

Indeed, his just-published column in The New York Times is a very short version of his insistent call for what he himself calls “radical reform.” His arguments are laid out in full in two books: Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), and, more recently, Framed: America’s 51 Constitutions and the Crisis of Governance.

The “crisis of governance,” for Levinson, is plain to see in contemporary America’s deeply polarized (and frequently gridlocked) political order.  Indeed, the introduction to the book Framed is a chronicle of the recent breakdowns in that order.

What is unique about Levinson’s scholarship, though, is that he traces most of the nation’s political ills to his view that the very structures created by the Constitution—and by many state constitutions, too—are the real source of dysfunctional government.

His core aspiration is to further democratize those structures—for example, by getting rid of the Electoral College and its indirect method of electing presidents, ending equal representation of the states in the Senate, limiting the presidential veto of legislation, and taking away unlimited terms (that is, life tenure) for Supreme Court justices.  He also favors transferring some national legislative power back to the people, so that they could enact laws by referendum (as they can in many states).

The professor is under no illusion that any of these reforms will come about through Article V of the present Constitution, governing how the document is to be amended.  So, perhaps his most radical idea is to summon a new constitutional convention, to go over the Constitution structure by structure and change what is needed to make government work again.

To critics who have said that such a convention would be a renegade gathering, hell-bent on destroying the current Constitution and particularly taking away civil rights, Levinson basically responds that he has a good deal more faith in the people to be sober self-governors.  (In fact, Levinson is a pioneering member of the academic movement to promote a new form of “popular constitutionalism.”  In much over-simplified terms, that involves a commitment to more democratic control of what the Constitution means, displacing—at least in part—judicial review.)

There are many other explanations, competing with Levinson’s, for any “crisis of governance” that may now be threatening American’s public order.  Not least of these is the change in political attitudes away from pragmatic government based on compromise and toward subservience to “pure” forms of ideological commitment.

And that trend has been reinforced by the highly developed capacity to craft political representation schemes so that the system maximizes incumbency, guarantees partisan outcomes, and minimizes ballot competition.

One also should not overlook the way political campaigns are financed these days, and whether that has geared the system toward more control by Big Money interests pursuing their own agendas without regard to their popular support.

Levinson, though, is surely right about one thing: it is time for a serious—and respectful—national conversation about the nature of America’s political order, and the role—if any—that the 225-year-old Constitution might have played in generating or tolerating the system that now exists.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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United States Supreme Court building. Photo by Jeff Kubina

American constitutional history has not moved in a straight line, from the Founding to the 21st Century. Its development is a wavering line, with twists and turns that were far from predictable. The amendment process under Article V has followed a meandering path — in fact, the latest amendment, the 27th, dealing with congressional salaries and ratified in 1992, was actually one of the first proposed, in 1789. Meandering, too, have been the Supreme Court’s interpretations of what the Constitution ultimately means — for any given day and time.

How, then, is it possible to assign a place in history for a new constitutional development? Does it rank among the most important, and with what can it be compared, closely or loosely? Where, one may ask, will a Supreme Court ruling on the Patient Protection and Affordable Care Act stand in history?

This coming week, the nine Supreme Court Justices will set out on another constitutional journey, and it probably will be a quick one: it might well be concluded in almost exactly three months. The three days of hearings on the new federal health care law — the most time set aside for a case in more than four decades — will be saturated with history. Monday’s argument will focus on an 1867 law, Tuesday’s will talk about precedents going back at least to 1942 and maybe all the way back to 1819, and Wednesday’s will have echoes of states’ rights doctrine all the way from the Philadelphia Convention and its Grand Compromise in 1787.

And, when the Court does rule, probably by late June, few doubt that it will have done something historic.

Without exaggeration, the final ruling has the potential to be the most important declaration on how the Constitution divides up power between national and state governments since the New Deal days some three quarters of a century ago. Without exaggeration, it could be the most important pronouncement on the federal “safety net” since the Social Security Act was upheld by the Court in 1937. Without exaggeration, a decision to strike down all or part of the new health law could be the most severe rebuff of Congress’s power over the national economy since the Sick Chicken Case in 1935. And, without exaggeration, a nullification of the Act in whole or in part could be the most devastating blow to presidential power and prestige since the Steel Seizure Case in 1952.

The law at issue is not directly about civil rights, but for the nation’s working poor, the coming ruling on the law’s validity could be as important to them as a 1938 decision was for racial minorities, essentially starting the modern civil rights revolution. And for individuals who want to be left alone by their government, the final decision may be a reminder of a 1905 decision that first spelled out a theory of individual liberty that, in time, would contribute importantly decades afterward to that same civil rights revolution.

Yes, it is that important — at least in potential. Whether or not it lives up to that potential may depend, to a significant degree, on how the Justices react to the 90-minute argument that opens the week on Monday. Many observers, and certainly most of the media, have been waiting most eagerly for Tuesday’s two-hour argument, when the biggest cog in the entire machinery of the Affordable Care Act, the individual mandate, is up for review.

But, in the end, the Court just might not rule at all on the individual mandate if it were to decide that no challenger had a right to go to court to contest the mandate’s constitutionality. That is Monday’s issue, and the first lawyer to step up to the Court’s lectern this week will be urging the Justices to do just that — to take a pass. Although neither the challengers nor the federal government currently believes that the federal Anti-Injunction Act was a bar to the lawsuits, the lower courts took differing positions on that, and the Justices have agreed to sort it out, naming a Washington lawyer with no other part in the case to make the point.

The Court itself had taken differing positions on that, in rulings decades ago, but then switched and steadily reinforced the Act’s ban on lawsuits that threatened to stop the U.S. Treasury from collecting tax revenues. If it should turn out that the Justices do apply the Act to the lawsuits against the mandate, the mandate would survive this test, and maybe $4 billion of tax revenue would still come in over coming years.

That would take away from this case much of its historic potential, because the constitutional issues surrounding the mandate are so momentous and yet would remain unsettled for now. But such a ruling would be one of the most significant gestures the Court has made to protect the national Treasury in 50 years — an action that could rank constitutionally with the ratification of the Sixteenth Amendment in 1913. It would be a strong message to lower courts to keep the courthouse doors closed to attempts to block federal legislation that is designed, at least in part, to produce revenue for the government’s coffers. But the practical effect, for the mandate, would be that it could not be challenged until after it had actually gone into effect — in 2014 — and was then enforced by the government.

There would be a political effect, too: the mandate’s future would remain an issue in this year’s congressional and presidential campaigns, and the outcome of the national election on November 6 could either doom the mandate to a repeal effort, or save it, at least until it went into effect. The issue of its constitutionality might not return to the Court until 2015 at the earliest.

However, when Monday’s argument winds up, close to noon, the nation — and even the Court — will not yet know whether the mandate’s fate is going to be decided. The Court will move on to Tuesday, to explore the mandate itself as if its validity were going to be settled. And that is the argument in which the biggest parade of history will march across the courtroom.

The federal government gets to open the argument that day, and its top Supreme Court advocate will seek to persuade the Court that history is on the government’s side, that health care is in a crisis of national proportions, that Congress must have the authority to rise to such occasions, and that this controversy calls for judicial modesty. For almost as long as there has been constitutional history, that attorney seems sure to argue, economic crises too big for the states to handle have been left to Congress. If Congress was constitutionally disabled from enacting this law, it will have had to surrender core constitutional power, the Court may be told.

And then two lawyers for the challengers will take turns arguing that this case does not involve just another episode of familiar history, but rather that this is constitutional history starting over. Congress, they will say, has never dared to so manage Americans’ private lives as it now has attempted, without precedent and without even a hint of authority from the Constitution. If Congress can do this, there is no invasion of private choice that will not be constitutionally tolerable, the Justices almost certainly will be told.

Wednesday will be a double-header on constitutional history. In the morning, the Court will return — as so often in the past — to the fundamental division of government authority between Congress and the courts — horizontal separation of powers that James Madison thought essential to individual liberty. That will be at the center of the argument on what happens to the remainder of the new health care law if the individual mandate were to be struck down. And, in the afternoon, the Court will trace many of history’s earlier steps along the line that divides national and state power — the vertical separation that Thomas Jefferson thought essential to the sovereignty and dignity of governments closest to the people. That will be the focus of the argument over the expansion of the Medicaid program for the poor, for the first time providing those benefits to millions of the working poor and to childless adults.

By week’s end, America will have witnessed — for most people, from afar, because only a couple of hundred seats are available for those who will see it actually happen — a deeply serious and probably quite revealing conversation about the Constitution and what it might mean 225 years after it was written.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: term limits for members of Congress.

The statement at issue:

“Florida is the first state to take this step, but it will not be the last. With term limits polling at all-time highs and the Congress at record lows, pressure is building around the nation for Congress to take action.”

–Karl Dickey, for an online newspaper, the West Palm Beach Libertarian Examiner, on March 2, “Florida legislature to Congress: Pass term limits for the U.S. Congress,” commenting on the state legislature’s action the day before urging Congress to send forth a constitutional amendment to impose term limits on its members.

We checked the Constitution, and…

It has been 17 years since the Supreme Court ruled that the states have no authority under state law to impose term limits on those who seek seats in the U.S. House of Representatives. It did so in the case of U.S. Term Limits v. Thornton, a ruling that made it clear that if such restrictions ever were to be imposed, it could only be done by amending the U.S. Constitution. The organization that pursued that case, U.S. Term Limits, is still very busily pursuing that goal, and has started a new round, seeking to persuade states to sign on to the campaign.

Florida’s legislature was the first, passing by acclamation (no specific vote count) a “House Memorial” calling on Congress to start the constitutional amending process. The resolution cited “a continuous and growing concern” that the Nation’s best interests would be served by setting limits on the terms that Representatives and Senators could serve. It claimed that this was the wish of “the founding fathers, incorporated into the Articles of Confederation, attempted through legislation adopted by state legislatures, and documented in recent media polls.” (One national poll in 2010 showed 78 percent of Americans favored the idea.)

Showing that the issue is showing some new life, Florida’s legislature became the first state legislature in the past decade to endorse a new amendment.

The Florida measure did not specify what limits ought to be imposed. But, in Washington, the proposal that is most often mentioned in discussions of the issue would limits members of the House to three two-year terms and of the Senate to two six-year terms. (For the House, if a member filled a vacancy for more than one year, that would count as the first term; for the Senate, it would count for a member who had filled a vacancy for more than three years.)

The backers of that proposal not only make “good government” arguments in favor of having “citizen legislators, not career politicians” (U.S. Term Limits’ slogan), but also are arguing that term limits are needed to end corruption. Senator Jim DeMint, South Carolina Republican, a sponsor of such an amendment, commented on the Senate floor in February: “All of the cases of corruption and bribery that I’ve seen, unfortunately, come from more senior members.”

But, whatever enthusiasm there may now be for the basic principle, there does seem to remain a wide gap in how members of Congress react. Senator DeMint, in fact, made his comment about corruption when the Senate voted down his measure, 24 to 75. Of course, under the Constitution, it needed 67 “aye” votes in the Senate, as well as two-thirds of the House, before it could be sent to the states for ratification.

An advocacy organization, the Senate Conservatives Fund, commented after the Senate vote: “It is telling that the senators who voted against term limits have been in the Senate for an average of 13.6 years compared to just 6.4 years for those who support them.”

The Florida legislature’s vote, though, may not have been such a forlorn request, if other states can be persuaded to join in the calls for an amendment. While the Constitution’s Article V gives Congress the authority on its own to choose to send a proposed amendment to the states (if the necessary votes are there for it in both chambers), the same Article makes it clear that Congress would have no choice but to call a new constitutional convention if two-thirds of the states – that is, 34 states – formally ask it do so.

That, obviously, is what U.S. Term Limits hopes got started in Florida.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.