Why_Certain_Amendments_Fail_to_Be_Ratified

Why Certain Amendments Fail To Be Ratified Throughout history numerous amendments have failed to be incorporated into the Constitution due to popular consensus; foreseen difficulties in enforcement; or a lack of legislative validity for the nation as a whole. However, all amendments are challenged by the federal and state legislative branches of government before they are ratified. This concerted challenge ensures that such laws reflect the needs of all Americans. Many times amendments have been seen as a source of rights that serve either disenfranchised citizens such as the 13th, 14th, and 15th amendments for African-Americans; or special interest groups such as the 18th amendment, later repealed by the 21st , reversing the prohibition of alcohol commerce and manufacturing. Many times, amendments other than those that concern civil rights or legislation to champion humanitarian causes have been seen as subversive to the freedoms Americans have. Many proposed amendments are deemed as irrelevant doctrines that otherwise have little to do with the routine of American politics, commerce, agriculture, health, or education. Reviewing the number of failed amendments suggest that many times these amendments were far too esoteric or exclusive to certain socioeconomic or political demographics within the current 300 million citizens of the United States (Mount, The United States Constitution). . The Pro-Slavery or Corwin Amendment and Popular Consensus As the U.S. Constitution continues to reflect the status quo of the American people, 27 adjustments have been established concerning the Amendment process. Amendments at times pass the primary tier within the federal government as a bill (passed by at least two thirds of Congress), yet may not be fully accepted at the second tier among the states. Therefore, they fail to be ratified. Many do not have expiration dates and thus have remained indefinite bills pending ratification. Others expire and are many times never reconsidered for further appeal toward ratification. Public opinion registered in states’ power has been a curious dilemma in the history of American law. It is both a blessing and a curse. It is a blessing in the sense that popular consensus, at the state level, does not allow the federal government to dictate absolute control over its citizens; on the other hand, it allows states to deny certain or all citizens rights promoted by the federal government, but not recognized by the state. In 1861 The Pro-Slavery Amendment also known as the Corwin Amendment (named after Ohio Rep. Thomas Corwin) was proposed. It was an amendment that promoted the concept of prohibiting Congress from establishing any law that interfered with the domestic institutions of any state (i.e. slavery). The amendment was ratified by two states. The amendment had no expiration date and theoretically remains for ratification, thus a zombie amendment (never ratified, never expires). However, due to the 13th, 14th, 15th Amendments and the Civil Rights act of 1964 the Corwin Amendment has been virtually nullified (Mount, The Failed Amendments). . In many ways, due to special interests groups of the time, such as religious and non-religious abolitionists and “free-soil” farmers, the Corwin Amendment was not popular and was a clear response to the Compromise of 1850. Both abolitionists and Free Soil farmers of the northern states and territories wanted new states admitted into the Union in accordance with the uneasy balance of free and slave states (Root, 2010). Furthermore, that lack of support for the ratification of the Corwin Amendment, assisted free-soil farmers who sought economic aims to ensure an equal opportunity to cultivate land with a feasible, commercial endeavor (McElroy, 2001). Free-soil farmers were at a constant disadvantage to slave-owning farmers due to paying wages, taxes, and smaller workforces who had the freedom to resign (American Constitution Society, 2006). Later, Reconstruction was undermined and virtually disbanded by the Hayes Administration in 1877. The response to the emancipation of American slaves, their citizenship, and voting rights were challenged by harsh segregation under Jim Crow, with de jure segregation in the South and de facto segregation in the North. Neither form of segregation was an Amendment; they were simply supported by state laws. However, desegregation acts (i.e. Brown v. Board of Education and the Civil Rights act of 1964) and voting acts (i.e. the Voting Rights Act of 1965) further shaped the multicultural perspective that dictates present-day, American civil rights (Wormser, Reconstruction; The Civil Rights Act of 1964 and the Equal Employment Opportunity Commission; American Constitution Society, 2006). The Equal Rights Amendment: Foreseen Difficulties in Enforcement Many times amendments fail to be fully ratified on the basis of foreseen difficulties in enforcing or addressing when they have been violated. Certain laws may be so detailed that they lead to numerous cases of litigation, potentially fallible cases of civil rights infringements, or may be redundant in light of legislation already in place. The Equal Rights Amendment of 1972 failed to be ratified and later expired in 1982, possibly due to similar legislation in place protecting the civil rights of women and laws governing legitimate cases of sexual discrimination; related to wages, sexual harassment, and hiring practices established by the Civil Rights Act of 1964, elements of the Voting Rights Act of 1965, and legal procedures and violations monitored by the EEOC. The key aspects of the Act supporting equal rights of women are: • Title VII of the 1964 Civil Rights Act, which prohibits any form sexual discrimination in the workplace, whether public, private, union, local, state, or federal, protects women from civil rights infringements based on sexual harassment. Examples of such discrimination are hiring, firing, and promotion (in relation to sexual favors or related acts); job classification, sexual jokes, and inappropriate behavior (i.e. sexual harassment, touching, or glaring), benefits and pay (such as lesser pay for equal work based one’s gender). • Title IX of the Education Amendments of 1972, which protect students from sex discrimination this law extends to academic extra-curricular entities, research groups, benefits (i.e. financial funding), admissions, occupational training, and other educational programs. However, certain religious organizations, military training schools (i.e. WestPoint), and university fraternities and sororities are not directly affected based on certain traditions based on gender or religious practices related to gender. Although many of these organizations attempt to receive individuals of either gender, as a form of promoting modernization and remaining in the graces of the greater society (Graff, Colorado State University; Associated Press, 2007). • U.S. Equal Employment Opportunity Commission (EEOC) is an independent federal agency. Its sole purpose is to monitor and file suits in relation to Civil Rights law violations including racial and sexual discrimination based on age, religion, and national origin, mental or physical disabilities, and in certain instances sexual orientation. The EEOC also protects through litigation any victim of retaliation who reports employment discrimination of any nature. The EEOC files a number of suits involving challenges or negligence of Women’s Rights (The Civil Rights Act of 1964 and the Equal Employment Opportunity Commission). Considering these laws and the EEOC, the Equal Rights Amendment (ERA) may have appeared as superfluous in relation to Civil Rights legislation already in place, for the rights the ERA was written to protect. Another factor the opposition posed is that once the ERA was passed it would affect traditional distinctions respected between the sexes such as the draft. Essentially, women would have to register with the selective service at the age of 18. Unfortunately, many lawsuits concerning infringements against women’s rights have been challenged by over-excessive use by individuals who at times are not victims of any discrimination and seek some form of personal vendetta or financial gain under the guise that they were victims of sexual discrimination. Therefore, it is more than likely the ERA failed to be ratified, not solely as duplicate legislation concerning the rights of women, but it would be difficult to enforce it as much as it is to prove for true victims of such violation. The EEOC is bombarded with requests for investigations related to sexual discrimination. Many times they suggest that employers handle such conflicts at the company level. However, if the victim fails to be satisfied, it may escalate before the EEOC. If the ERA had been ratified, to many it may have only added to the numerous conflicts concerning issues difficult to legally interpret in a time of open fraternization between males and females of multilevel titles in present corporations; o many times one’s sex, just as someone’s race may not be an issue of discrimination. In many cases, employees fail to be promoted or are fired due to below-average performance or policy violations. Therefore, adding the elements of the ERA would have heighten conflict and in many ways established a separate set of laws that solely benefitted women, creating greater sexual legislative imbalances and infringement claims with variable validity (Mount, The Failed Amendments) . The Flag Burning Amendment: Lack of Legislative Validity Lack of legislative validity is a major point where amendments have failed to be ratified. In order for an amendment to be valid it has to serve the nation as a whole. If a law solely serves a key group of citizens, states, corporations, interest groups, or may undermine rights protected by the Constitution simply to satisfy those interest groups, it can create discrepancies in all three authoritative divisions of the federal and state governments. One recent amendment that failed to be ratified based on the lack of legislative validity was the Flag Burning Amendment. Most citizens of the United States, no matter what side of the political spectrum they stand, feel flag burning (the physical desecration of the flag by fire) is a despicable and offensive act. It is perceived as a demonstration of sedition and disrespect for what the flag stands for, as observed many times by recent enemies of the United States such as the Taliban and a number of insurgents in the Near East and Central Asia (i.e. Iraq, Iran, and Afghanistan). Therefore, when flag burning is performed by U.S. citizens there is uproar of emotional and political conflict concerning what such an act establishes about American freedoms, civil rights, and the values that hold such ideologies as self-evident to all citizens (The Indology CMS, 2004). Flag burning in some sense is an act by Americans to attack what they feel is wrong within American politics; from the U.S. actions in the Iraqi Wars; foreign policies and agreements that do not assist nations like Tibet and Taiwan subjugated by China (currently one of the U.S’s major trading nations); or flag burning protests the economic unrest stretching between the Bush and Obama administrations. Many Americans see the economic unrest as serving more control over the American economy among big banks, corporations, and federal interests. Flag burning is perceived by those who propagate its use as a means to exercise the First Amendment right of Freedom of Speech. Yet, the opposition sees it solely as an abuse of that right. Both the opposition and advocates of flag burning share the common bond of contradiction in their argument. If flag burning is considered unlawful it does undermine the First Amendment and acts thereof. However, as flag burning continues and is protected by indifferent legislation, the act of flag burning destroys the very symbol many Americans and citizens of the world hold legislation that protects freedom. Therefore, to burn the flag can be interpreted as an attack on the very freedoms and rights supported by American democracy (The Indology CMS, 2004). The reason the Flag Burning Amendment failed is due to the fact that the federal government does not want to contradict itself through legislative ambiguity. Such ambiguity could lead to the retraction of other laws that are supported by the citizenry. Citizens feel such laws protect and enforce the legitimacy of their rights. All previous flag burning laws passed by the House of Representatives, but not by the Senate (as early as 1995) stating flag burning as a criminal offense have been overturned by the Supreme Court of the United States. Gregory Lee Johnson burnt a flag in a protest against the Reagan Administration and certain Dallas Corporations. In Texas v. Johnson the U.S. Supreme Court ruled against a Texas law prohibiting the physical desecration of the American flag on June 21, 1989. Justice William Brennan led a five-to-four justice majority, stating that the defendant's act of flag burning was protected speech under the First Amendment of the United States Constitution. Shawn Eichman burnt a flag on the steps of the State Capitol protesting American foreign and domestic policy Mark Haggerty burnt a flag in Seattle, WA protest. In both United States v. Eichman and United States v. Haggerty, the U.S. Supreme Court nullified a federal law against flag desecration as a violation of free speech under the First Amendment of the United States Constitution on June 11, 1990. As recent as 2000 a 63-37 Senate vote against the ratification of the Flag Burning Amendment remains the legislative status quo. However, even if the Amendment receives the necessary Congressional support to move toward ratification, it must be fully ratified by three-fourths of the states to be added to the Constitution (The Indology CMS, 2004). Amendments Are Subject to the Dynamic Ebb and Flow of Legislation Amendments fail due to a lack of dynamic, legislative connection that Americans agree is correct and represents the rights they are willing to protect. Amendments fail due to popular consensus of whether they serve the public or not. If the public is divided, their representation is divided, whether Congress passes a bill for ratification as an amendment of not. An amendment will fail to be ratified if there is doubt in how it will be monitored and enforced. At times bills have their strengths in theory, yet if they are a revision of previous legislation or full of vague references to certain infringements, they leave room for bureaucratic red tape and legal discrepancies that waste time, money, and energy. Americans support laws that demand concentration for the purpose to better individual’s lives and support equal opportunity to excel. However, proposed amendments that can add to the line of legal and or moral conflicts are not favorable if they appear divisive. Amendments fail if their focus serves any particular group outside the status quo, namely those who challenge the First Amendment. Proposed amendments that seek the approval of special interest entities can lead to a slow deterioration of the Constitution; of which every aspect of its cohesiveness citizens enjoy will be undermined and disunited. As legislation continues to evolve alongside the people who develop it, amendments will be added to the Constitution. However, the consideration of all citizens and their needs reflected in the rights of all people must be acknowledged, in order for further amendments to be ratified. BIBLIOGRAPHY American Constitution Society (November 19, 2006) Failed Amendments We Have Known & Loved. Columbia Law School. http://columbiaacs.blogspot.com/2006/11/failed-amendments-we-have-known-loved.html The American Constitution society describes the nature of a Zombie Amendment which has never been ratified nor expires. The article describes the failed amendments, including a failed amendment for a national referendum to declare war, unless the nation was attacked; an amendment to strip children of illegal immigrants born in the U.S. of their citizenship; and an amendment imposing a pro-Christian element on American institutions, namely schools (i.e. the Pledge of Allegiance). Associated Press (October. 4, 2007) More Women Than Ever Enter West Point: Female Enrollment at Famed Military Academy Now at Record. http://www.msnbc.msn.com/id/21133997 The Associated Press presents an article concerning female enrollment highs at Westpoint. The overall female population was 17% in 2007. The rise in female enrollment shows a grave improvement in sexual equality within American society and the steadfast strength, skill, and determination of the American woman. Graff, J. (n.d.) Title IX: The Good, the Bad, and the Ugly.Colorado State University. (Retrieved February 1, 2010) http://writing.colostate.edu/gallery/talkingback/v2.2/graff.htm Graff addresses the applications of Title IX on the CSU campus. The article addresses whether Title IX is still pertinent or superfluous in areas of equal rights related to CSU athletic programs. McElroy, W. (May, 2001) the Free-Soil Movement. Freedom Daily. http://www.fff.org/freedom/0601e.asp McElroy shows the history of the free-soil farmers and their protest against the spread of slavery. Although, they were not noted abolitionists, their efforts helped influence the Compromise of 1850, the unsuccessful Homestead Act of 1848, antebellum presidential bids, and the conflicts that led to legislation and later the Civil War involving secession, landownership, slavery, and the political evolution of the United States. Mount, S. (n.d.) The Failed Amendments. U.S. Constitution Online. (Retrieved January 31, 2010) http://www.usconstitution.net/constamfail.html Mount addresses the failed amendments. He explains the amendment process. He addresses how many failed amendments simply were not ratified by states and thus failed to be added to the U.S. Constitution. Mount makes reference to the terms “informal” amendment and popular amendment. Informal amendment simply means the interpretation of the laws the Constitution contains change with the times. A popular amendment refers to an action never exerted upon the Constitution in which the citizenry can draft and submit an amendment to be ratified. Mount, S. (n.d.) The United States Constitution. U.S. Constitution Online. (Retrieved January 31, 2010) http://www.usconstitution.net/const.html Mount addresses the Constitution, The Bill of Rights, and subsequent amendments. Root, D. (January 19, 2010) The Abolitionist Movement and the 14th Amendment. Reasons, Hit & Run. http://reason.com/blog/2010/01/19/the-abolitionist-movement. Root address how abolitionists had to appeal to an indifferent American status quo to abolish slavery through legislation that addressed citizens’ rights already stated in the Constitution. Freed slaves would not receive rights beyond the extent of the current white population. They would simply be citizens of former slave status and receive all rights under the Constitution. Teaching with Documents: The Civil Rights Act of 1964 and the Equal Employment Opportunity Commission. (Retrieved February 1, 2010) The U.S. National Archives and Records Administration :College Park, MD http://www.archives.gov/education/lessons/civil-rights-act This article lists the history and nature of the EEOC and its development alongside the peak of the Civil Rights Movement with the Civil Rights Act of 1964 to the present. The Indology CMS (December 1, 2004) Indopedia: Flag Burning Amendment, (Retrieved February 1, 2010) http://www.indopedia.org/Flag-burning_amendment.html This article describes the history behind the failed Flag Burning amendment and the logistics of the cases that led to its failure to be ratified. The cases noted are Texas v. Johnson, United States v. Eichman, and United States v. Haggerty. Within all three cases the Supreme Court judged against the legislation to make flag burning a criminal offense. The Supreme Court judged flag burning as an extension of the First Amendment’s Freedom of Speech. Wormser, R. (n.d.) The Rise and Fall of Jim Crow: Reconstruction. PBS.online. (Retrieved February 1, 2010) http://www.pbs.org/wnet/jimcrow/stories_events_reconstruct.html Wormser describes how Jim Crow reversed all but the institution of slavery in the South, completely undoing the progress of Reconstruction. However, due to the harsher acts of violence and subjugation upon African-Americans socially by the Ku Klux Klan and politically by Southern Democrats, the ground was set for stronger leaders of racial equality to emerge throughout the Civil Rights Movement.