Journal Article•
"Great Variety of Relevant Conditions, Political Social and Economic": the Constitutionality of Congressional Deadlines on Amendment Proposals Under Article V
TL;DR: For example, the authors examines the history, theory, and policy of congressional deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding.
Abstract: Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.
With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.
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TL;DR: Barron's recent meditation on the linkages between local, state, and federal jurisdictions largely reflects the conventional wisdom, at least with regard to this specific legal formality.
Abstract: It is no historical accident that the \"town meeting\" is the dominant political metaphor of our American republic. Since the earliest settlers arrived in the New World, towns and cities have been a wellspring of popular sovereignty and civic republicanism. It is a strikingly odd textual fact, then, that localities receive no mention in the Constitution. The document does not specifically define the role that towns and cities play in the constitutional regime, nor does it explicitly preserve a sphere for local autonomy. Given this omission, Supreme Court doctrine and modem scholarship on local government articulate-or at least accept-the following principle: Localities possess no constitutional personality. Local government theorist David Barron's recent meditation on the linkages between local, state, and federal jurisdictions largely reflects the conventional wisdom, at least with regard to this specific legal formality.' Barron criticizes the Court's emphasis on federalism from a localist perspective. His general argument is that the current \"federalism revival\" improperly ignores the various ways in which existing \"centrally created legal regime[s]\" limit local autonomy, 2 and the various ways in which new regimes-the commandeering systems in Printz 3 and New York, for example-may counterintuitively enhance local autonomy. The Court misunderstands the effects of new federal laws, he contends, because it has not properly assessed the place of localities in a broader state and federal structure of governance.5 As part of his analysis, Barron tells the standard story-that cities and towns have no explicit constitutional authority to exercise powers other than those granted by the state.6 However, he continues, \"[I]t is widely
9 citations
Book•
30 Aug 1994
TL;DR: In this paper, a survey of Constitutional Amendments and their impact on change is presented, along with a selective look at the impact of the political branches in changing the U.S. Constitution.
Abstract: Preface The Process of Constitutional Amendment and Constitutional Change A Survey of Constitutional Amendments and Their Impact on Change A Selective Look at Supreme Court Decisions and Their Impact on Change A Selective Look at the Impact of the Political Branches in Effecting Change Examining the Terminology and Theory of Constitutional Change Laws, Orders, Judicial Decisions, and Amendments: A Comparative Analysis Appendix: Amendments to the U.S. Constitution Selected Bibliography Index
7 citations
Posted Content•
TL;DR: In this article, the authors focus on countries that adopted constitutional amendments on sex equality after the federal Equal Rights Amendment failed to be ratified by the requisite number of states, and propose a new vision of the ERA's legal function, drawing on the experience of global constitutionalism.
Abstract: The last few years have seen a renewed push to constitutionalize sex equality in the United States. A generation after the federal Equal Rights Amendment (ERA) failed to be ratified by the requisite number of states, the ERA is on the platform of the 2017 Women’s March on Washington. Oregon added a sex equality guarantee to its state constitution in 2014, joining 22 state constitutions and most constitutions around the world. Feminist coalitions, Hollywood celebrities, and members of Congress are vocally endorsing an ERA revival. Why is an ERA desired now, when judges have interpreted the Fourteenth Amendment to prohibit sex discrimination? Today’s ERA proponents want the Constitution to do something about women’s continued economic disadvantages, the unfair treatment of pregnant women and mothers in the workplace, women’s underrepresentation in leadership positions, and the inadequate responses to violence against women. Yet, the legal functions they attribute to the proposed constitutional guarantee — such as strict scrutiny for sex distinctions — are unlikely to respond to these post-industrial problems of gender inequality. Nonetheless, this Article proposes a new vision of the ERA’s legal function, drawing on the experience of global constitutionalism. Focusing on countries that adopted constitutional amendments on sex equality after the ERA’s failure, this Article shows how the constitutional right to sex equality can promote gender balance in positions of political and economic power, combat practices that disadvantage mothers in the workplace, and shift family care policies to increase fathers’ participation in childcare. In Europe, constitutional sex equality amendments since the 1990s go beyond outlawing sex discrimination; these new amendments engender and legitimize legislative efforts to disrupt the traditional gendered division of roles in the family and public spheres. Constitutional courts in Germany and France have construed these amendments as articulating actual equality between women and men as a principle by which the constitutional order’s legitimacy is measured, rather than as an individually enforced right. In the United States, there are some synergies between European constitutional innovations in gender equality and public policies that are emerging piecemeal at the state and local level. States are leading the way in legislating pregnant worker fairness, paid parental leave, and childcare. A motherhood movement and a wide range of actors from across the political spectrum are driving these new laws. These developments can shape an updated vision of constitutional sex equality for the United States. Taking inspiration from global constitutionalism, and recognizing the potential of state constitutionalism, this Article identifies the emerging new infrastructure of social reproduction — rather than antidiscrimination — as the normative core for the twenty-first-century ERA.
5 citations
Journal Article•
4 citations