The Failed Amendments

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b.

David S. Ferriero. Archivist of the United States

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the Office of the Federal Register (OFR). The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.

via The Constitutional
Amendment Process

Far more amendments have been proposed than have ever been passed by Congress or gone to the states for ratification.

Notable Failed Amendments

Prior to 1919 when the 18th Amendment was ratified, there was no time limit on the ratification process. However, in 1919, Congress instituted a time limit on the passage of a proposed addition to the Constitution.

Approximately 11,539 measures have been proposed to amend the Constitution from 1789 through January 2, 2013.

Some prominent proposals included:

19th century

• Blaine Amendment, proposed in 1875, would have banned public funds from going to religious purposes, in order to prevent Catholics from taking advantage of such funds. Though it failed to pass, many states adopted such provisions.
• Christian Amendment, proposed first in February 1863, would have added acknowledgment of the Christian God in the Preamble to the Constitution. Similar amendments were proposed in 1874, 1896 and 1910 with none passing. The last attempt in 1954 did not come to a vote.
• The Crittenden Compromise, a joint resolution that included six constitutional amendments that would protect slavery. Both the House of Representatives and the Senate rejected it in 1861 and Abraham Lincoln was elected on a platform that opposed the expansion of slavery. The South’s reaction to the rejection paved the way for the secession of the Confederate states and the American Civil War.

20th century

• Anti-Miscegenation Amendment was proposed by Representative Seaborn Roddenbery, a Democrat from Georgia, in 1912 to forbid interracial marriages nationwide. Similar amendments were proposed by Congressman Andrew King, a Missourian Democrat, in 1871 and by Senator Coleman Blease, a South Carolinian Democrat, in 1928. None was passed by Congress.
• Anti-Polygamy Amendment, proposed by Representative Frederick Gillett, a Massachusetts Republican, on January 24, 1914, and supported by former U.S. Senator from Utah and anti-Mormon activist, Frank J. Cannon, and by the National Reform Association.
• Bricker Amendment, proposed in 1951 by Ohio Senator John W. Bricker, would have limited the federal government’s treaty-making power. Opposed by President Dwight Eisenhower, it failed twice to reach the threshold of two-thirds of voting members necessary for passage, the first time by eight votes and the second time by single vote.
• Death Penalty Abolition Amendment was proposed in 1990, 1992, 1993, and 1995 by Representative Henry González to prohibit the imposition of capital punishment “by any State, Territory, or other jurisdiction within the United States”. The amendment was referred to the House Subcommittee on the Constitution, but never made it out of committee.
• Flag Desecration Amendment was first proposed in 1968 to give Congress the power to make acts such as flag burning illegal. During each term of Congress from 1995 to 2005, the proposed amendment was passed by the House of Representatives, but never by the Senate, coming closest during voting on June 27, 2006, with 66 in support and 34 opposed (one vote short).
• Human Life Amendment, first proposed in 1973, would overturn the Roe v. Wade court ruling. A total of 330 proposals using varying texts have been proposed with almost all dying in committee. The only version that reached a formal floor vote, the Hatch-Eagleton Amendment, was rejected by 18 votes in the Senate on June 28, 1983.
• Ludlow Amendment was proposed by Representative Louis Ludlow in 1937. This amendment would have heavily reduced America’s ability to be involved in war.

21st century

• A balanced budget amendment, in which Congress and the President are forced to balance the budget every year, has been introduced many times.
• School Prayer Amendment proposed on April 9, 2003, to establish that “The people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools.”
• God in the Pledge of Allegiance – declaring that it is not an establishment of religion for teachers to lead students in reciting the Pledge of Allegiance (with the words “one Nation under God”), proposed on February 27, 2003, by Oklahoma Representative Frank Lucas.
• Every Vote Counts Amendment – proposed by Congressman Gene Green on September 14, 2004. It would abolish the electoral college.
• Continuity of Government Amendment – after a Senate hearing in 2004 regarding the need for an amendment to ensure continuity of government in the event that many members of Congress become incapacitated, Senator John Cornyn introduced an amendment to allow Congress to temporarily replace members after at least a quarter of either chamber is incapacitated.
• Equal Opportunity to Govern Amendment – proposed by Senator Orrin Hatch. It would allow naturalized citizens with at least twenty years’ citizenship to become president.
• Seventeenth Amendment repeal – proposed in 2004 by Georgia Senator Zell Miller. It would reinstate the appointment of Senators by state legislatures as originally required by Article One, Section Three, Clauses One and Three.
• The Federal Marriage Amendment has been introduced in the United States Congress four times: in 2003, 2004, 2005/2006 and 2008 by multiple members of Congress (with support from then-President George W. Bush). It would define marriage and prohibit same-sex marriage, even at the state level.
• Twenty-second Amendment repeal – proposed as early as 1989, various congressmen, including Rep. Barney Frank, Rep. Steny Hoyer, Rep. José Serrano, Rep. Howard Berman, and Sen. Harry Reid, have introduced legislation, but each resolution died before making it out of its respective committee. The current amendment limits the president to two elected terms in office, and up to two years succeeding a President in office. Last action was On January 4, 2013, Rep. José Serrano once again introduced H.J.Res. 15 proposing an Amendment to repeal the 22nd Amendment, as he has done every two years since 1997.
• On January 16, 2009, Senator David Vitter of Louisiana proposed an amendment which would have denied US citizenship to anyone born in the US unless at least one parent were a US citizen, a permanent resident, or in the armed forces.
• On February 25, 2009, Senator Lisa Murkowski, because she believed the District of Columbia House Voting Rights Act of 2009 would be unconstitutional if adopted, proposed a Constitutional amendment that would provide a Representative to the District of Columbia.
• On November 11, 2009, Senator Jim DeMint proposed term limits for the U.S. Congress, where the limit for senators will be two terms for a total of 12 years and for representatives, three terms for a total of six years.
• On November 15, 2011, Representative James P. McGovern introduced the People’s Rights Amendment, a proposal to limit the Constitution’s protections only to the rights of natural persons, and not corporations. This amendment would overturn the United States Supreme Court decision in Citizens United v. Federal Election Commission.
• On December 8, 2011 Senator Bernie Sanders filed The Saving American Democracy Amendment, which would state that corporations are not entitled to the same constitutional rights as people. It would also ban corporate campaign donations to candidates, and give Congress and the states broad authority to regulate spending in elections. This amendment would overturn the United States Supreme Court decision in Citizens United v. Federal Election Commission.
• Rep. Jesse Jackson, Jr. backed the Right to Vote Amendment, a proposal to explicitly guarantee the right to vote for all legal U.S. citizens and empower Congress to protect this right; he introduced a resolution for the amendment in the 107th, 108th, 109th, 110th, 111th and 112th, all of which died in committee. On May 13, 2013, Reps. Mark Pocan and Keith Ellison re-introduced the bill.