Guest Essayist: Nathaniel Stewart, Attorney

Proposed Amendment: D.C. Statehood Amendment:

District of Columbia Statehood Proposal:


Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.


Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.


Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.


Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The nation’s capital city, Washington, DC, is a federal city, and it constitutes “the seat of Government of the United States.”[1] After great debate and deliberation over the location for the nation’s capital, the Founding generation settled upon a compromise in 1791.  Congress first raised the subject of a permanent capital for the government of the United States in 1783, and it was ultimately addressed in Article I, Section 8 of the Constitution (1787), which gave the Congress legislative authority over “such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. …”  In 1788, Maryland gave to Congress “any district in this State, not exceeding ten miles square,” and in 1789 the state of Virginia ceded an equivalent amount of land.  In accordance with the “Residence Act” passed by Congress in 1790, President Washington in 1791 personally selected the diamond-shaped area along the shores of the Potomac River that is now the District of Columbia.

The Founders well-understood that the District of Columbia was under the control and jurisdiction of Congress itself, and the city was not itself a state, nor did it sit within the boundaries of any existing state.  This helped to ensure the federal government’s independence from state politics or inter-state quarrels that might develop and hinder federal action.  As a federal district, however, the capital did not have an elected local governor, nor did city residents have the right vote in national elections.

Nearly 200 years later, in 1961, the 23rd Amendment to the Constitution granted District residents the right to vote in Presidential elections, and it gave the District the number of electors in the electoral-college that it would have if it were a state.  The amendment did go so far as to provide the District with its own Senators or members of Congress, but the District has since gained a non-voting delegate in the House of Representatives.

A decade later, the left-wing political activist Julius Hobson formed the D.C. Statehood Green Party, which began campaigning for statehood for the District.  The movement for statehood, helped by Democratic Senator Ted Kennedy, was instrumental in Congress passing the District of Columbia Home Rule Act in 1973, granting the city an elected mayor and city council.

The movement pressed on, seeking full statehood for the District, and in 1978 Congress passed the District of Columbia Voting Rights Amendment.  The amendment was then sent it to the states for ratification.  The new amendment would have repealed the 23rd Amendment and given the District four electors (instead of three), as well as voting members in the Senate and House of Representatives.  The proposed amendment met with stiff opposition from the states who feared that granting the District voting members in Congress would dilute their own representation.  According to its terms, the proposed amendment would be “inoperative” if it was not ratified within seven years of the date it was submitted for ratification.  The deadline for ratification was August 22, 1985, and only sixteen of the fifty states had ratified the proposal before the time limit had expired, well-short of the thirty-eight needed for ratification.

In 1980, DC residents passed the District of Columbia Statehood Constitutional Convention of 1979, calling for a constitutional convention for a new state. Two years later, voters ratified the constitution for “New Columbia,” the proposed 51st state in the Union, but the campaign for statehood stalled after the proposed DC Voting Rights Amendment failed in 1985.  Since then, statehood advocates have periodically proposed legislation to enact the “New Columbia” state constitution, but it has never been passed by Congress, and the last serious congressional debate on the issue took place in November 1993, when D.C. a statehood proposal was defeated in the House of Representatives by a vote of 277 to 153.  Much of the momentum has since dissipated from the statehood campaign, and it is unlikely to be revisited by Congress or ratified by the several states anytime soon.

[1] U.S. Const. Amendment 23.

Nathaniel Stewart is an attorney in Washington, D.C.

June 21, 2012 

Essay #89 

Guest Essayist: Allison R. Hayward, political and ethics attorney

Another Proposed Amendment: Women’s Equal Rights:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all.  But the ERA has also been used as a political tool in efforts to secure electoral advantage.  As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.

The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women.  This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality.  But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.

But other social reformers saw women’s rights as a tool.  Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages.  A coordinated campaign began around the turn of the 20th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws.  The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910.  Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19th Amendment in 1920.  Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.

In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848.  By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.

As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees.  Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972.  Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.

Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex.  Some read like the ERA, but others are narrower.  For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”

Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women.  But others argue that a constitutional amendment could be both too broad and ineffective.  Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities.  ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.

What laws and practices would ERA abolish?  Could there be unintended consequences?  Interestingly, labor reformers in the early part of the 20th century thought so.  They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.

Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter.  Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.”  If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.

Allison R. Hayward is a political and ethics attorney in California

June 20, 2012 – Essay #88

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Proposed Amendment: Child Labor Ban Amendment:

Section 1: The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.Section 2: The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

The Child Labor Amendment is a proposed and still-pending amendment to the US Constitution offered by Ohio Congressman Israel Moore Foster in1924, during the 68th Congress.

Perhaps one of the biggest political fights of the 20th century involved the question of whether the federal government had or should have authority to regulate child labor.  Alexander Hamilton and Horatio Alger stood on one side representing those who thought that child labor was a positive influence and on the other side stood influential novelist Elizabeth Stuart Phelps and a host of high society New Englanders who believed that this constituted a completely unnecessary and even ruinous exploitation of the nation’s youth.

Estimates varied about the size and scope of the problem.  The 1880 census reported that roughly 17% of all children were “gainfully employed.”  By 1910 that number had risen to nearly 19%.  However even at its highest point, the lion share of the youths working did so on a farm, and mostly that of their own families.  Fewer than 25% worked in canneries or any manufacturing plants.

The first state to restrict child employment was Massachusetts.  In 1836 they banned 15 year olds from manufacturing jobs and then six years later adopted a law making it illegal to allow 12 year olds to work for more than 10 hours a day.  By the turn of the century 28 states had adopted child labor laws.

However, leaders of the Teddy Roosevelt wing of progressivism within the Republican Party felt that state action was insufficient.  They argued that it was essential that the feds take over these regulations in order to make them uniform and also in order that the rules could be as aggressive as was practical to end the scourge of child labor.

Historians report that they started by trying to ban the interstate transport of articles produced in factories or mines that employed children under 14.  The Department of Commerce announced the creation of a Federal Children’s Bureau and began a full-throated contribution to the fight with updates and missives about the need for federal action.

Senator Albert Beveridge an early backer of a federal ban solicited and reported on the claims by known socialist agitators that there were thousands of “thumbless boys and girls who don’t know how to play.”

The promoters of federal action even went so far as to include a ban in the 1912 Republican platform causing President Taft to break with the party when he declared federal child-labor law unconstitutional.  Unfortunately by the time that President Wilson would come into office – even after having opposed the concept while campaigning – he would determine that it was expedient to sign a ban into law.  The Supreme Court would promptly strike down the measure arguing that “Freedom of Commerce will be at end, and the power of states over local matters may be eliminated” if the law were allowed to stand.

Nevertheless, Congress was undaunted.  Congress came back this time with a measure that proposed a 10% profits tax on all industries that violated the recommended child labor standards.  This too the Supreme Court struck down – this time 8-1.

It was then that the advocates decided that a Constitutional Amendment was in order.  Congressman Israel Foster of Ohio and Senator Samuel Shortlidge of CA introduced the measure.  They worded the amendment to cover not just employment, but work generally.  In other words, the amendment purported to give the federal government the power to intervene on behalf of any child under the age of 18 who was responsible for “chores” as well as those who actually worked at factories.

Starting off with support from the NEA, the American Legion, the YWCA, the PTA, and even Presidents Warren and Harding the amendment seemed unstoppable.

The Child Labor Amendment has been ratified by the legislatures of the following 28 states:

  1. Arkansas in 1924
  2. Arizona in 1925
  3. California in 1925
  4. Wisconsin in 1925
  5. Montana in 1927
  6. Colorado in 1931
  7. Illinois in 1933
  8. Iowa in 1933
  9. Maine in 1933

10. Michigan in 1933

11. Minnesota in 1933

12. New Hampshire in 1933

13. New Jersey in 1933

14. North Dakota in 1933

15. Ohio in 1933

16. Oklahoma in 1933

17. Oregon in 1933

18. Pennsylvania in 1933

19. Washington in 1933

20. West Virginia in 1933

21. Idaho in 1935

22. Indiana in 1935

23. Utah in 1935

24. Wyoming in 1935

25. Kentucky in 1936

26. Kansas in 1937

27. Nevada in 1937

28. New Mexico in 1937.

However, two arguments would ultimately stop the Child Labor Ban amendment in its tracks.  The first was the claim that alcoholism and drunkenness among fathers was the reason why so many young people were in the workplace.  And secondly, groups like the Women’s Constitutional League of Maryland effectively explained that at the end of the day, “The fathers and the mothers are better prepared to pass judgment upon the needs and the welfare of their children than this Congress is.”

A new opposition coalition developed made up of the Catholic Church, farmers, and ordinary families.  Together along with the claim that most of the “childsavers” were childless caused much of the momentum to slow and then ultimately reverse.

In true ironic fashion, it was Massachusetts where the amendment would face its major defeat.  The Archbishop of Boston mounted a vigorous campaign against the amendment as being anti-family and claimed that it would “take from parents the right and duty to educate and guide their children.”  Suddenly the Lutherans joined in the effort.  An advisory referendum was scheduled for the state and the amendment lost in a lopsided vote 697,563 to 241,461.  This was the beginning of the end.

Perhaps the most significant consequence of the introduction of the Child Labor Ban Amendment is that the right of the people to determine ultimately what the policies and rules of their nation would be remain with the people through the state legislatures.  In a landmark case, Coleman v. Miller the US Supreme Court in a dispute over the Child Labor Ban Amendment officially recognized that if Congress does not specify a ratification deadline, then the proposed amendment remains pending business.  Today, with 50 states in the Union, the ratifications of 10 additional states would be required to incorporate the proposed Child Labor Amendment into the Constitution.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 19, 2012

Essay #87


Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Proposed Amendment: Slavery and the States Amendment:

State’s sole right to regulate slavery proposal:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

This proposed amendment is the so-called Corwin Amendment.  Passed by the 36th Congress on March 2, 1861, the Corwin Amendment offered by Ohio Representative Thomas Corwin was presented as a means of forestalling the secession of Southern states prior to the beginning of the Civil War.

It had become increasingly clear to many in Congress that a conflict was occurring over the status of slave versus non-slave states that could have cataclysmic effects on the Union.  In the 36th session alone, there were more than 200 different measures introduced regarding the subject of slavery including nearly 60 Constitutional amendments.

The Corwin Amendment sought to forbid any future attempts to amend the Constitution to empower the Congress to “abolish or interfere” with slavery as a way to ensure that southern states would not feel obligated to leave the American Union.  Presented as a last ditch effort to prevent the collapse of the Union, the proposal didn’t have the intended effect.  The newly formed Confederate States of America organized and declared that it would pursue a path of independence completely ignoring Congress’ intentions with the Corwin Amendment.

Notably the Corwin Amendment has the distinction of being the only constitutional amendment to have an actual numerical designation assigned to it by Congress—the proposing resolution includes the name “Article Thirteen.”

After passing the House and Senate, congressional leaders prevailed upon incoming President Lincoln to send a letter to each governor alerting them that the amendment had passed.  While President Lincoln never endorsed the measure, he acquiesced to the request.

By the time President Lincoln had been elected, seven southern states had seceded and within a few months four others would join them.  While Lincoln had not campaigned on a platform to end slavery where it existed, he had pledged to use the power of the federal government to prevent slavery from spreading to territories that were not yet states.  His willingness then to send the letter was yet another demonstration of the lengths he was attempting to go to prevent the dissolution of the union.

Ohio has the distinction of the being the first legislature to ratify the amendment on May 13, 1861.  However by March 31, 1864 the commencement of the Civil War and changing public sentiment led the legislature to rescind its ratification.  Since Congress did not include a final ratification date for this proposed amendment, it technically is still pending.  In 1963 more than a century after it was ratified, Texas state representative Henry Stollenwerck introduced a resolution to ratify in the Texas statehouse.   It was referred to the House of Representatives’ Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.

It is noteworthy that the Confederate Constitution contained no provision like that found in the Corwin amendment.  Even though the Confederate charter explicitly authorized slavery in the Confederacy, it didn’t seek to prevent or bar future amendments that might restrict or abolish slavery.

Most scholars believe that even if the Corwin Amendment had been adopted it would not have been irreversible.  That is to say, Congress and the states could bar Congressional interference with slavery if they wanted but they couldn’t bar a subsequent Congress and the states from either repealing the amendment the same way they did when they adopted prohibition and then repealed it later or adding new amendments that had the same effect.  In other words, the mere adoption of the Corwin Amendment would not have prevented a subsequent Congress from passing an amendment to ban slavery or to protect the voting rights of blacks who were formerly slaves.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 18, 2012

Essay #86

Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Proposed Amendment: Titles of Nobility Amendment:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them

Introduced in 1810, the so-called Titles of Nobility Amendment (TONA) was sponsored primarily by Maryland Senator Philip Reed.  Historians argue that this amendment’s purpose was two-fold.  One to make it more difficult for foreign agents to buy or influence votes in state and federal elections, and secondly to prevent saboteurs and enemies of America from promising land, wealth, and titles to officers in the military or other prominent appointees in government as a way to undermine their loyalty to the United States.

Senator Reed, the primary sponsor, was quite a character.   A revolutionary war hero, purportedly during the battle of Stony Point, he cut off the head of an American deserter and had it displayed on a pike as a deterrent to other deserters.

As a Senator from Maryland, Senator Reed and his constituents were keenly aware of the younger brother of French Ruler Napoleon Bonaparte’s marriage to the daughter of wealthy Baltimore merchant William Patterson.  Jerome Bonaparte’s marriage to Elizabeth Patterson (the Paris Hilton of her day) not only scandalized Northeastern American society, suggestions that the marriage would result in a lifetime annuity and a title for Ms. Patterson and her heirs was sufficient to remind American leaders of the need to minimize the ability of foreigners to influence American society and its political structure.

Primarily supported by Federalists, the amendment’s substance galvanized the Congress getting broad support.  The resolution passed both houses of Congress in 1810: the United States Senate by a vote of 19 to 5 and by the House of Representatives by a vote of 87 to 3.  It was sent to the states and awaits action for ratification.   According to the Supreme Court, in a case entitled Coleman v. Miller, the amendment is still available to be considered and ratified by the various states, as there is no deadline for ratification specified when Congress initially proposed the amendment.  As least 26 more states would have to ratify the amendment in order for it to become part of the Constitution today.

This amendment was ratified by 12 state legislatures:

1.  Maryland (December 25, 1810)

2.  Kentucky (January 31, 1811)

3.  Ohio (January 31, 1811)

4.  Delaware (February 2, 1811)

5.  Pennsylvania (February 6, 1811)

6.  New Jersey (February 13, 1811)

7.  Vermont (October 24, 1811)

8.  Tennessee (November 21, 1811)

9.  North Carolina (December 23, 1811)

  1. Georgia (December 31, 1811)[1]
  2. Massachusetts (February 27, 1812)
  3. New Hampshire (December 9, 1812)

Senator Reed lived to be 69 years of age, dying in 1829.  A memorial marks his grave to this day as one of Kent Maryland’s most distinguished citizens.

Today the only controversy about this so-called “Titles of Nobility Act” is whether it was already ratified.  Historians overwhelmingly agree that the amendment was not ratified.  In 1833, the brilliant and highly regarded judge and commentator Joseph Story wrote “it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary” and the 1848 edition of Bouvier’s Law Dictionary recorded that TONA “has been recommended by Congress, but it has not been ratified by a sufficient number of states to make a part of the constitution.”

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 15, 2012

Essay #85

Guess Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Before we conclude our 90 Day Amendment Study, we now take a look at some pending Constitutional Amendments, which have not been adopted:

The first in this short series is an amendment on Congressional Apportionment – Essayist: David Eastman, 2011 Claremont Institute Abraham Lincoln Fellow

Proposed Congressional Apportionment Amendment

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Few today may be able to tell you, but the most immediate concern in the minds of many Americans following the adoption of the Constitution was not first amendment rights concerning freedom of speech, but rather first amendment rights concerning the number of representatives in Congress. And though it receives comparatively little attention in our own day, it was this issue that the Congress was compelled to tackle in the very first constitutional amendment it adopted (September 25, 1789).

Concerns over congressional apportionment predated ratification of the Constitution and were the subject of fully three of the Federalist Papers, in one of which Madison remarked “Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention by the weight of character and the apparent force of argument with which it has been assailed” (Federalist 55). The initial apportionment scheme that generated such high-spirited controversy was as follows:

“The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”

New Hampshire (3)
Massachusetts (8)
Rhode Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
Total (65)

Madison defended this portion of the proposed Constitution against a two-pronged attack: first, that the number of representatives in Congress, being too few, was inadequate to prevent corruption of the legislative body; and second, that such a number would deprive the body of sufficient knowledge owing to the inability of members of Congress to effectively represent such a large number of constituents. Also relevant was the concern that if the House of Representatives were ever to become too numerous, its character as a representative body would be undermined. Despite Madison’s best efforts to answer these concerns, they persisted, leading several states to propose amendments to this portion of the Constitution, which they submitted to the Articles Congress with their respective ratification documents.

These, and other requests submitted by the states, resulted in the first twelve amendments passed by the United States Congress and submitted to the states on September 25, 1789. Ten of the twelve were soon adopted as the Bill of Rights, and the eleventh would lay silently awaiting ratification until approved by the State of Michigan and finally added to the Constitution 202 years later, on May 7, 1992.

The twelfth and final amendment, the Congressional Apportionment Amendment, was ratified by a majority of states at the time of its passage, but less than the three-fourths required for adoption. This could be due in part to a transcription error that resulted in a mathematically impossible apportionment formula once the population of the United States reached 8 million and before it reached 10 million. The apportionment scheme now in use is determined by Congress, in keeping with the original text of the Constitution.

As it has already secured the approval of Congress, the Apportionment Amendment could follow the path taken by the 27th Amendment and be adopted if ratified by additional states. However, its passage today is unlikely, not only due to the passage of time but also due to the fact that approval would be of limited practical effect as the scheme currently approved by Congress is already in harmony with the Amendment. It seems Congress has been successful, at least as concerns this particular amendment, in fixing a number that is neither so numerous that passions become unwieldy, nor so few that states come to question the ability of their representatives to be independent voices amidst the representatives of other states.

David Eastman is a former U.S. Army Captain, a Claremont Lincoln Fellow. He can be reached at

June 14, 2012

Essay #84