Proposed Amendment

4 03 2009

Missed this a few weeks ago, but, apparently, Sen. Russ Feingold (D-WI) has proposed a new constitutional amendment which would require an election to fill empty seats in the Senate.

From the Washington Post, which supports it:

SEN. RUSSELL Feingold (D-Wis.) has a problem with all the folks filling vacated seats in the Senate. The issue is not with them personally. Rather, it’s how they got there: not by the will of the people but by the will — or whim — of the governors of their home states. So Mr. Feingold has introduced a constitutional amendment that will put the power to fill Senate vacancies in the hands of voters through a special election.

Thanks to the election of President Obama, who plucked a vice president and two cabinet secretaries from the Senate, governors in Illinois, Delaware, New York and Colorado were tasked with appointing their successors. In some cases the seats have been treated like family heirlooms or — allegedly — like property to be sold to the highest bidder. In another case, the process to choose the next occupant was opaque and unbecoming. But in all cases, how the new senators came to Washington is undemocratic and shouldn’t continue.

What Mr. Feingold proposes would be a fix of the 17th Amendment, which gave voters the right to elect their senators. It also gave governors the power to fill vacancies. The Feingold amendment reads, “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.”

It got me thinking about all the dead and proposed amendments in the past that never saw the light of day. Let’s review shall we? These are ones that were actually ratified by some states:

  • The Constitutional Apportionment Amendment, which was almost our first amendment, which is unexpired by seems to have become useless now with the population the size it is (for a state to become a state, for example, you have to have 60,000 people… the amendment only made consideration for congressional districts up to 50,000 people).
  • The Titles of Nobility Amendment would have rescinded citizenship to anyone who took a title of nobility from another country … this was proposed two years before the War of 1812 (yea, which means it was proposed in 1810 :-)). (Can still pass – no expiration)
  • The Corwin Amendment was essentially a politically correct way of saying that the federal government can’t rule on slavery. Period. It was a last-ditch effort before the Civil War, and no southern state actually passed it. (Can still pass — no expiration.)
  • The child labor amendment gave the federal government the right to pass laws against child labor. Seriously. This, however, ended up being unnecessary and the government passed laws anyways. (Can still pass — no expiration.)
  • The controversial Equal Rights Amendment which would have barred discrimination based on sex. Personally, I think it should have gone after more. The ERA has expired and some of the ratifying 35 states (two short of necessary 2/3 for passage) have rescinded their ratification.
  • The DC Voting Rights Act would have rescinded the 23rd Amendment and treated DC as a state in representation — complete with one (maybe more) Representative and two Senators. To this day, I don’t know why this hasn’t passed. But politics will play in this one — DC is Democratic territory — and because we no longer believe in actual represenation, it will never pass.

Then there are hundreds of little amendments that no one ever approved, including (from here):

  • Ensuring reproductive freedom for women (2005-2006 Congress)
  • Allow non-natural citizens to run for President if they’ve been a citizen for 20+ years, which we’ll call the “Schwarzenegger Amendment” (05-06, 01-02)
  • Guarantee the filibuster in the Senate (05-06)
  • Lower age of Senator/Representative from 30 and 25 to 21 (03-04)
  • Restrict marriage between a man and a woman (03-04)
  • Require a federal balanced budget (01-02)
  • Specify a right to “equal high quality” health care to all persons (01-02)
  • Apply the 5th and 14th amendment to unborn children (99-00)
  • Establish the right to have a home (97-98)
  • Clarify that the Constitution neither prohibits nor requires school prayer (97-98)
  • Clarify the 2nd Amendment (95-96)
  • Repeal the 16th Amendment and end income tax (95-96)
  • Remove from public office any person convicted of a felony (95-96)
  • Provide for run-offs in plurality wins in a Presidential election, which we’ll call the “Clinton Amendment” (93-94)
  • Representative term limits (91-92)
  • Mandatory moments of silence in public schools (91-92)
  • Lowering the voting age to 16-year olds (91-92)

Just to clarify the last Amendment to pass was the 27th, and that was 1992, which set a bar on Congress granting mid-term pay raises. This was one of the original 12 Amendments suggested as the Bill of Rights, but it and the Congressional Apportionment Amendment were not passed.

My point in all this is this: most amendments proposed reflect a particularly divisive issue at the time which eventually kind of works itself out. It’s only when, after many years of debate, that it seems to be a real problem or a real sticking point before it can pass. I’m not sure how the gubernatorial power over Senatorial replacements will be viewed, but it seems relatively important…

…in fact, when you look at the history of proposed amendments, the Federal Marriage Amendment seems to be … well … just another bunch of crazies in Congress proposing a hot button issue amendment.

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