A Constitutional Issue (But Not THAT Constitutional Issue)
During the 2016 campaign, then-candidate Donald Trump proposed amending the Constitution to impose term limits on members of Congress. Though President Trump had been largely silent on the issue for the first 17 months of his White House tenure, he reiterated his support for the constitutional amendment in a tweet earlier this year.
So what does the process of amending the Constitution look like, and what is the likelihood that President Trump’s effort will be successful? In short, not so good. According to the Clerk of the United States Senate, approximately 11,699 amendments to the Constitution have been proposed in Congress since its inaugural session in 1789. To date, only 27 have been ratified.
On Sept. 25, 1789, James Madison submitted 17 constitutional amendments for approval by Congress and ratification by the states. Under Article V of the Constitution, each of these had to be individually approved by a two-thirds majority in both the U.S. House and Senate and by three-quarters of the states. Ten amendments—the Bill of Rights—met those thresholds and became constitutional addenda by 1791.
Most of the other seven proposals were lost to history, but one—an amendment that delayed laws affecting Congressional salary from taking effect until after the next midterm election—was finally ratified as the 27th amendment to the Constitution on May 5, 1992, 202 years, seven months, and 10 days after Madison introduced it.
By comparison, the Equal Rights Amendment (ERA), which many advocates hope will become the 28th amendment, has had a much shorter lifecycle. Introduced in 1923 by women’s suffrage leader Alice Paul, it only took Congress 49 years to approve the ERA, which requires that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In their approval, federal lawmakers also gave the states seven years to ratify the amendment. (Spoiler alert: this will become an issue later on in this update.)
Legislators in Hawaii acted swiftly, approving the ERA just 32 minutes after the measure passed Congress. Thirty-four states followed suit over the next four years, but supporters didn’t get the 38 states needed to ratify by the 1979 deadline. Federal lawmakers then extended the deadline to June 30, 1982, but, even with a three-year extension, there were still 15 holdouts by that date: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.
Congress did not extend the deadline again. (Spoiler update: Congress’ inclusion of a deadline for ratification is starting to become an issue.)
That doesn’t mean the ERA is dead, however. In fact, in the last 24 months, two more states have ratified the amendment. Nevada legislators approved the measure in March 2017 and Illinois followed in May of this year, bringing the magic number for ratification down to one. State lawmakers in Arizona, Florida, and Virginia tried to push ERA ratification in their legislatures this year, but those efforts failed. Lawmakers there, and in North Carolina, have vowed to keep moving forward during the next legislative session.
But presuming one more state votes to ratify the amendment, we could have something of a constitutional crisis. As The New York Times recently reported, ratification of the amendment by one more state would set off a “legal showdown, intense lobbying and constitutional fireworks” because opponents argue the amendment is no longer viable since the congressionally-mandated deadline has passed. (Spoiler update: this is where Congress’ insertion of a ratification deadline becomes an issue.) Thus, even for what would otherwise seem a slam-dunk constitutional amendment, a 46-year effort that appears to be tantalizingly close to the finish line could ultimately be for naught.
In a political environment defined by legislative inaction amidst growing partisan rancor, the likelihood of President Trump’s proposed constitution amendment to impose term limits winning ratification seems quite low. Both history and members of Congress’ own self-serving interests to maintain their employment suggest that we won’t soon see a term limit amendment leapfrog the ERA anytime soon.