The U.S. Constitution has been in continuous use since 1789 – our best claim to being “the world’s oldest democracy,” or “democratic republic,” if you prefer.
But is it in good health? There, signs are less encouraging.
Among the oddest of recent legal doctrines has been the “originalist” school, which finds the Constitution adequate exactly as the Framers left it. The absurdity that a Constitution written two centuries ago anticipates all our present needs hasn’t made it less influential among certain Supreme Court justices.
Even the greatest charters of government must be renewed periodically. Yet while state constitutions are amended countless times, there have been only 27 federal amendments.
Most were ratified in the early 20th century, when America’s role in the world was growing and changing.
It all ended in the turbulent 1960s. The last new amendment was ratified in 1971; it granted 18-year-olds the right to vote, honoring the conviction that those who risked dying in Vietnam ought at least to have the franchise.
Yet there was one more, an original part of James Madison’s list of 12 amendments that, because two remained unratified, became the 10 we know today as the Bill of Rights.
It’s a simple one, forbidding any pay raise Congress voted for itself from taking effect until after the next House election. Just five of the original 13 colonies agreed, plus Vermont and Kentucky upon becoming states – well-short of the required three-quarters.
In 1982, a 20-year-old University of Texas law student, Gregory Watson, unearthed the “lost” amendment, and realized, since there was no expiration date, ratification could continue. His paper making this argument didn’t impress his professor, who gave him a “C,” but Watson then sent letters to every state legislative committee he thought would listen.
One did. In 1983, Maine became the 10th state to ratify. Most debate was in committee, and unrecorded, but it produced an 11-2 “ought to pass” recommendation from the State Government Committee.
The bill was sponsored by Sen. Melvin Shute, a Republican and a millwright at St. Regis Paper in Bucksport. There was another Republican, and two Democratic co-sponsors: Sen. Ken Hayes, a UMaine political science professor; and Rep. Neil Rolde, Gov. Ken Curtis’s first press secretary, later a noted Maine historian. Ah, bipartisanship!
It was the Reagan years, and distrust of Congress reached a peak. Yet it’s doubtful many Maine lawmakers envisioned starting a national movement.
By 1989, another 22 states ratified and six more in the early ‘90s, two on the same day in 1992. The 27th Amendment was on the books.
The difficulty of amending the federal Constitution to, say, reject the Supreme Court’s contention that unfettered campaign spending is “protected free speech” can seem discouraging.
So it’s worth remembering that one college paper is responsible for the only amendment ratified in the last 50 years; Watson’s grade was retrospectively raised to “A.”
Now, another amendment has received ratification from 38 states – the Equal Rights Amendment, enacted by Congress in 1972. By that time, expiration dates were standard, though only a half dozen amendments have failed ratification.
What happened to the ERA – which provides that “equality of rights under the law shall not be denied or abridged . . . on account of sex” (today we’d say “gender”) – is simple, and unfortunate.
Ratification initially proceeded briskly – 34 states within two years – but the ERA became embroiled in the controversy over Roe v. Wade, handed down the following year.
Most legal scholars agree that Roe, decided on the basis of the “unenumerated” right to privacy, would not be affected by the ERA.
Yet that’s how the debate – once non-partisan – has proceeded since the 1990s, with Democrats favoring the ERA and Republicans opposed, much like Roe itself. Three newly Democratic legislatures ratified, with Virginia decisive last year.
Now, the question is whether Congress can repeal the expiration date, as logic suggests. It’s far more likely such a vote would be upheld than six “recessions” by states attempting to un-ratify.
A repeal bill passed the U.S. House in March, with four Republicans joining 218 Democrats, and now sits in the Senate Judiciary Committee.
Do we need an ERA? The millennia in which women were considered the property of men, and well as contemporary attempts to discriminate, suggests we do.
Consider: The Republican Party’s leaders, all male, just evicted the highest-ranking woman in House leadership for daring to tell the truth about a former president’s false election claims.
If somehow, the ERA is judged ratified, it might even prompt consideration of the Constitution’s other deficiencies, renewing our search for “a more perfect union.”
Someone might even write a paper.
Douglas Rooks has been a Maine editor, commentator, reporter and author since 1984. His new book is “First Franco: Albert Beliveau in Law, Politics and Love.” Visit the website, https://douglasrooks.weebly.com/#/ or e-mail: drooks@tds.net
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