Amending the U.S. Constitution
As the Supreme law of the land, the United States Constitution is the highest legal authority and is binding at the federal, state, and local levels. Since the Constitution is the preeminent legal source of authority, all other laws, regulations, and rules must comply with the Constitution. Cognizant of the powerful force and effect of all Constitutional provisions, the Framers set forth a demanding procedure that must be satisfied in order to amend the Constitution. Article V of the Constitution provides the steps that must be taken to properly amend or add to the Constitution. The successful passage of a new Constitutional amendment requires a two-third vote by both Houses of Congress and ratification by three-fourths of the states (United States Constitution, art. V). While the Framers intentionally made it difficult to pass a Constitutional amendment, they foresaw the need to provide for a mechanism to add to the Constitution and to accommodate and adapt to a progressing and evolving society.
Throughout the nation’s history, thousands of Constitutional amendments have been proposed. But only a small fraction of those proposed are incorporated into the Constitution itself. There are only twenty-seven amendments included in the Constitution, ten of which are derived from the original Bill of Rights. There are various reasons why certain proposed amendments were successful and the majority of the proposals ultimately failed. A major factor contributing to the success or failure of a proposal is the political landscape at the time. Many of the proposed amendments that have eventually come to be a part of the Constitution were influenced largely by social or political climate at the time.
One successful amendment was the Nineteenth Amendment in 1920, which gave women the right to vote (United States Constitution, amend. XIV). For many decades preceding the passage of the Nineteenth Amendment, women were advocating for greater women’s equality in society. The Seneca Falls Convention in 1848 marks the beginning of the women’s suffrage movement (Brown 2177). At this Convention, women argued that men and women were created equal and that women should be given equal rights as citizens (Brown 2178). The suffrage movement gained great momentum in the aftermath of the Civil War. During the Reconstruction Era, the Fourteenth Amendment was passed, guaranteeing citizenship to all persons regardless of race (Brown 2178). Many women were hopeful that the Fourteenth Amendment would provide a new legal basis to challenge the denial of equal rights and the right to vote to women (Brown 2178).
The Fourteenth Amendment itself had a huge impact on igniting the women’s suffrage movement that would lead to the Nineteenth Amendment. What was most problematic about the Fourteenth Amendment for the suffragist cause was that the amendment specifically referred to protection of “male” suffrage (Siegel 968). Congress’ reason for not specifically including women under the Fourteenth Amendment protection was that women’s interests were sufficiently represented through their male relatives (Siegel 950). Even after the Fourteenth Amendment guaranteed all male citizens the right to vote, women faced an uphill battle to achieve the women’s right to vote.
The Supreme Court was very unreceptive to the idea that men and women should be given equal rights. In the case Minor v. Happersett, the Court effectively foreclosed the possibility of arguing that voting was a right to citizenship under the Fourteenth Amendment (Brown 2178). These opinions reflected the firmly engrained gender roles of men and women in society. Women attempted to challenge the denial under various legal theories, but each time, the Court struck them down.
After many unsuccessful attempts to argue that the Fourteenth Amendment enfranchised the women’s right to vote, women turned to a different strategy. Instead of arguing that Fourteenth Amendment protected women’s equal rights, the campaign strategy of suffragists instead shifted to framing the issue as a “woman question” (Siegel 975). Women’s suffragists challenged the prevailing notion that women were adequately represented through male family members and relatives (Siegel 989). With years of efforts, women were finally able to convince America that women deserved the equal right to vote, resulting in the Nineteenth Amendment.
The Failed Equal Rights Amendment
One example of an unsuccessful proposed Amendment that amassed significant support, yet not enough to become incorporated into the Constitution, was the Equal Rights Amendment. The Equal Rights Amendment (ERA) was initially introduced to Congress in 1921, shortly after the passage of the Nineteenth Amendment (Lukey and Smagula 10). The original purpose of the ERA was to serve as a starting point for enhancing women’s rights in the aftermath of winning the right to vote (Lukey and Smagula 10). What is somewhat striking is that the ERA was introduced to every Congressional session spanning from 1923-1972 (Lukey and Smagula 10). In 1972, the ERA received the necessary 2/3 approval from both Houses of Congress and was sent to the states for ratification (Lukey and Smagula 10). At the onset, the ERA seemed certain to gather enough state support for passage.
There are a number of explanations as to why the ERA has never managed to assemble sufficient support to become a Constitutional amendment. The proposed text of the ERA would subject any gender classifications or different treatment to heightened scrutiny (Davis 422). One big reason is that the social climate of America has changed dramatically since the ERA was first introduced in 1921. Women have assumed a completely different role in society than at the time the ERA was proposed. In addition, numerous laws have been enacted which provide some protection against gender and sex discrimination. That is not to say, nonetheless, that an ERA amendment may not be successful in the near future. In light of the increased protections for same-sex relationships, an ERA amendment may garner sufficient support in today’s political climate because it is perceived that same-sex couples and other members of the LGBT community need stronger protections to safeguard their equal rights.
Works Cited
Brown, Jennifer K. “The Nineteenth Amendment and Women’s Equality.” Yale Law
Davis, Martha F. “The Equal Rights Amendment: Then and Now.” Columbia Journal of
Gender and the Law (2008): 419-459. Web. 19 Mar. 2016.
Lukey, Joan A. and Smagula, Jeffrey A. “Do We Still Need A Federal Equal Rights
Amendment?” Boston Bar Journal (2000): 10-28. Web. 19 Mar. 2016.
Siegel, Reva B. “She the People: The Nineteenth Amendment, Sex Equality, Federalism,
and the Family. Harvard Law Review (2002): 947-1046. Web. 19 Mar. 2016.
United States Constitution, amend. XIV. Web. 19 Mar. 2016.
United States Constitution, art. V. Web. 19 Mar. 2016.
