On September 17, 1787, 39 delegates to the Constitutional Convention signed the new U.S. Constitution in Philadelphia. Their work was only the beginning. Nine states still needed to ratify it, sparking another debate over the government the framers had proposed.
More than 150 years later, Congress enacted “I Am an American Day” to celebrate American citizenship. In 1952, the holiday moved to September 17th, the date the Constitution was signed, and renamed Citizenship Day. In 2004, Congress changed the name to both Constitution Day and Citizenship Day. So on this historic day, it seems like a good excuse to spend a few minutes with the document that’s governed us since 1789. Take notes; there will be a quiz at the end.
Of course, most of our attention is focused on the Constitution that we have: seven articles and 27 amendments accumulated over more than two hundred years. But another history of the Constitution exists just off the main text: amendments that never quite made it. Well, and one that did two centuries later.
In 1982, Gregory Watson was a student at the University of Texas when he stumbled across a proposal that Congress had submitted to the states along with the Bill of Rights in 1789. It stated that any future changes to the pay of members of Congress would not go into effect until after the next election to a new House of Representatives. The amendment failed to receive the necessary ratifications and fell out of sight until Watson noticed that Congress had not set a deadline for it. Watson argued in a class paper that the amendment was still valid for ratification. His professor gave him a C.
Watson appealed the grade but had no success. So he decided to make his case elsewhere. He began a campaign writing to state legislators around the country, with Maine ratifying the amendment in 1983. By May 1992, enough states ratified the amendment to add it to the Constitution. More than 202 years after Congress first proposed it, Article the Second of the original Bill of Rights became the 27th Amendment, the most recent to be added.
This story has a nice postscript. In 2017, the University of Texas changed Watson's grade from a C to an A. The amendment took 203 years to get ratified. The grade change only took 35.
If an amendment could sit in constitutional limbo for two centuries and still make it, what else is out there? Quite a lot, as it happens. Congress has proposed 33 amendments since 1789, 27 of which were ratified and 6 of which were not. Article V of the Constitution calls for two-thirds approval from both the House and Senate to propose an amendment, and three-fourths approval from the states to ratify it. Congress may attach a deadline, although 4 of the 6 non-adopted amendments have no deadline, and one that expired is still contested today.
The Almost First Amendment
The Bill of Rights didn't originally have 10 amendments. In September 1789, Congress sent 12 amendments to the states, with what is now the First Amendment originally being Article the Third.
Article the First dealt with the size of the House of Representatives, and the concern behind it was more important than the dry wording might suggest. The country's population was growing, and Madison worried that if the House did not grow with the times, it would become increasingly removed from the people it was supposed to represent. He had heard the same concern during the state ratification debates and later called this section of the Constitution "defective, though not dangerous."
The amendment sought to link the size of the House to the population. It established a ratio of roughly one representative for every 30,000 citizens, but as the House grew, the ratio would change, eventually reaching one representative per 50,000 citizens.
In modern terms, that ratio would create a U.S. House of 6,850 members representing a national population of roughly 343 million. Some might argue it would be a far worse cast of characters than we have today.
The amendment came close to ratification before falling short. Article the Second, which dealt with congressional pay, eventually re-emerged as the 27th Amendment. Article the Third became our First Amendment.
Congress stopped allowing the House to grow with the population and fixed its voting size at 435 members. So while Article the First never made its way into the Constitution, the question of representation remains. Today, each House district contains, on average, 761,000 citizens, probably too large to be the voice of the people.
The Phantom 13th Amendment
By 1810, the United States was growing increasingly uncomfortable with European influence. The Constitution already prohibited the federal government from granting titles of nobility and limited federal officeholders from accepting certain benefits from foreign powers without Congress's consent.
Senator Philip Reed of Maryland, a proud son of my native Eastern Shore, wanted to expand the limitation. His amendment would apply to every American citizen and carried serious consequences: anyone who accepted a title or other benefit from a foreign power without Congress's permission would have their citizenship revoked and be disqualified from holding public office.
The states couldn't muster enough ratifications, but printers gave the states a constitutional mystery. The proposal showed up in several printings of the Constitution over the next century as if it had been adopted. In 1817, copies printed for members of Congress included it as the 13th Amendment, and the confusion was serious enough that the U.S. House asked President James Monroe to determine if it had been ratified.
As we know now, it had not. Speculation about a suppressed or "missing" 13th Amendment keeps popping up, but the real mystery is that another proposed 13th Amendment just wasn't an amendment. But it makes for a great constitutional conspiracy theory.
The Other (Almost) 13th Amendment
The next near-miss is a bit less fanciful. By winter 1860-61, Abraham Lincoln had been elected president, Southern states were seceding, and Congress was looking for something it could do to hold the Union together. Ohio Representative Thomas Corwin offered one last-ditch effort.
The Corwin Amendment would have prohibited any future constitutional amendments from giving Congress the power to abolish or interfere with slavery in any state. The amendment squeaked through the House with barely enough votes to meet the two-thirds threshold and won ratification in the Senate by the same narrow margin. President James Buchanan signed it just before leaving office, even though presidents have no role in approving amendments.
Lincoln would be sworn in as president just two days later. In his first inaugural address, he said he believed the Constitution already implied such a limitation on federal power and that he had "no objection to its being made express and irrevocable." The Corwin Amendment did not preserve the Union and was not ratified. By summer, 11 states had seceded, and the Civil War had begun.
Four years later, at Lincoln's urging, Congress sent the states a different proposed 13th Amendment, and this one abolished slavery. In just four years, America had gone from contemplating a 13th Amendment designed to make slavery off-limits to federal constitutional amendment to ratifying one that outlawed slavery in the United States.
Overtaken by History
By the early 20th century, photographs of child labor had helped make the issue of child labor a national concern. Lewis Hine was particularly famous for capturing images of children working in factories and other industrial settings, giving Americans an image of childhood that clashed with the comfortable picture of family life they wanted to believe in.
Congress tried to act in 1916 with the Keating-Owen Child Labor Act. Rather than regulating factories directly, Congress used the Interstate Commerce Clause to prohibit the shipment of goods produced under certain child-labor conditions. The Supreme Court struck it down two years later in Hammer v. Dagenhart, ruling that Congress could regulate interstate commerce but not control local manufacturing conditions that belonged to the states.
Congress tried another route by imposing a tax on businesses using child labor. The Supreme Court rejected that approach too in 1922.
With ordinary legislation blocked twice, Congress turned its attention to the Constitution. The Child Labor Amendment of 1924 would explicitly grant the federal government the power to “limit, regulate, and prohibit” the labor of anyone under 18. Ratification stalled as opponents argued it attacked states’ rights, and the amendment received only 28 ratifications, short of the required number.
Then the constitutional obstacle that had produced the amendment disappeared. Congress passed the Fair Labor Standards Act in 1938, again regulating labor conditions connected to interstate commerce. When the law reached the Supreme Court in United States v. Darby in 1941, the Court upheld it and expressly overruled Hammer v. Dagenhart. Congress had the commerce power after all.
The Child Labor Amendment never became part of the Constitution because the country reached much the same destination without it. Because Congress gave the proposal no deadline, it is technically still pending.
The ERA After the Deadline
The Equal Rights Amendment had been around for nearly a half-century when Congress finally approved it. One of the leaders of the women's suffrage movement, Alice Paul, proposed an equal rights amendment in 1923, just three years after women won the constitutional right to vote.
Versions of the amendment made it to Congress over the decades but never passed. In 1970, after it became bogged down in committee again, Michigan Rep. Martha Griffiths used a discharge petition to get it on the House floor. Congress passed the amendment in 1972 and sent it to the states, giving them seven years to ratify it.
States ratified it quickly: Hawaii did so within hours of the amendment's approval, and 21 other states ratified that year. Then momentum slowed, and by the 1979 deadline the amendment had only 35 states, three short of the 38 needed to ratify it. Congress extended the deadline to 1982, but no other states ratified.
Fast-forward to decades later: Nevada ratified the amendment in 2017, Illinois in 2018, and Virginia in 2020. If those votes count, the ERA has the 38 states needed for ratification, although several earlier states have claimed the right to withdraw their ratifications.
Small side note: South Carolina has legislation pending to ratify, including S. 48, sponsored by Senator Tom Davis, who served as Chief of Staff before me in Governor Sanford’s office.
The National Archives has said it cannot certify the ERA under existing law because congressional deadlines have expired. The amendment is not part of the Constitution, but the fight over whether the ERA's story is finished has proven much tougher to resolve.
Tick Tock, D.C.
Washington, D.C., has been an unusual constitutional case almost from the beginning. Before the federal government took control of the District in 1801, residents there had voted as residents of Maryland or Virginia. Once Congress assumed exclusive authority over the new federal district, residents lost voting representation in Congress.
That arrangement lasted for generations. The 23rd Amendment, ratified in 1961, finally allowed District residents to vote for president. A nonvoting delegate returned to the House in the 1970s, and home rule gave residents an elected mayor and city council. But D.C. still had no voting members of Congress, even though its residents paid federal taxes like everyone else.
In 1978, Congress proposed closing that gap. The amendment would not have made the District a state, but it would have given it congressional representation, presidential elections, and participation in the constitutional amendment process, so D.C. would largely have been treated like one. Because that arrangement would have covered presidential elections, the separate 23rd Amendment would eventually have been repealed.
The proposal barely cleared Congress. The House passed it 289 to 127, while the Senate approved it 67 to 32, only one vote more than the two-thirds required. Supporters could point to an awkward fact behind the old complaint about taxation without representation: District residents were paying federal income taxes while having no voting voice in the Congress that imposed them. In fact, the District of Columbia's license plate today includes some variation of “Taxation without Representation.”
Congress gave the states seven years to decide. When the deadline arrived in 1985, only 16 states had ratified the amendment, far short of the 38 it needed. No Gregory Watson comeback was available this time because Congress had put a clock on the process, and the clock had run out.
A Constitution Designed to Change
The six amendments that failed tell us something the 27 that succeeded cannot. They show constitutional change while it is still uncertain, when Americans are arguing not only about what the Constitution means but what they want it to become.
George Washington understood before ratification was complete that the document would need room to change. He admitted its imperfections and rejected the idea that his generation possessed some wisdom unavailable to those who would follow. Future Americans would have experience on their side, he wrote, and the Constitution left a “Constitutional door” open for whatever changes they might find necessary.
“I do not conceive that we are more inspired,” Washington wrote, “than those who will come after us.”
Americans have walked through that door 27 times, while six other proposals made it as far as Congress and stopped somewhere along the way. Constitution Day seems like a good excuse to spend a little time with both groups. The Constitution is shorter than most people remember and, once you start tugging at threads like these, considerably more interesting.
If we are going to keep arguing about what it says, we might as well read it. And no quiz after all. I was bluffing. But there is enough for a Jeopardy category or a fun story at your next party.
Happy Constitution Day!
Read More: U.S. Constitution (National Archives)
Thank you for this thoughtful piece on Constitution Day. As a D.C. native, I'm still peeved that D.C. residents pay federal taxes (the most per capita in the country) yet don't have representation. My mom was born and raised in D.C., served our country abroad, and worked at Walter Reed Army Medical Center for many years before retiring. She died several years ago having never been represented in the U.S. Congress. That is just plain un-American, in my view.
Interestingly, the D.C. Voting Rights Amendment won support from many people one might not expect, including Sen. Strom Thurmond of South Carolina. Responding to concerns from newly enfranchised African American voters in his home state, he went on the floor of the Senate to defend the amendment, saying that the fight for "human rights begins here at home in the nation's capital."