Tuesday, 27 January 2009

From the department of colossally good ideas (aka Congress)

Steven Taylor, Nate Silver, and Alex Knapp are all on-board with an amendment proposed by Sen. Russ Feingold to the U.S. Constitution to strip governors of their power to make long-term “temporary” appointments to the Senate. Since Feingold hasn’t released the text of his proposed amendment yet, I can’t consider the merits of his specific proposal, but in general I am supportive of the idea that a special election to fill a vacant seat should be held within 60–90 days of a senatorial vacancy. I’d also amend Article I, Section 2 to specify a similar, specific deadline for filling vacancies in the House of Representatives, but that is hardly a deal-breaker if omitted. Assuming there are no hidden catches, I hope Congress acts quickly to propose this amendment to the states, where I suspect it will be received warmly by the state legislatures—who, after all, do not require gubernatorial approval to ratify constitutional amendments.

At the same time, I hope this amendment (if it is ultimately successful, which I suspect it will be) helps dispel the modern myth that the Constitution is excessively hard to amend. In point of fact, throughout much of American history politically controversial amendments were proposed and ultimately adopted, including both the adoption and repeal of Prohibition, the extension of the right to vote to women, the abolition of the poll tax, the Civil War amendments (particularly the 14th and 15th amendments extending citizenship rights to ex-slaves), and the indirect taxation amendment that led to the federal income tax. Just because the Supreme Court in recent years has been willing to reinterpret the Constitution to better suit the often-evolving values of society (witness, for example, the magical constitutionalization of the Equal Rights Amendment absent its ratification*) does not mean that the document is too hard to amend and thus the Nine must reinterpret it instead, merely that it is easier to file an amicus curiæ brief than to work through the amendment process in Article V.

* This is not to say that the ERA should not have passed; merely to observe that the Supreme Court’s decisions have essentially enshrined the ERA into constitutional law despite the fact that the states chose not to do so. Indeed, I suspect the ERA (or a lightly-modified version that excluded women from any mandatory service requirement) would be ratified today if proposed by Congress, but the Supreme Court’s actions have made any such action moot… at least until/unless five justices decide it wouldn’t be moot I suppose.


Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.
[Permalink] 1. Idella Moore wrote @ Tue, 27 Jan 2009, 8:43 am CST:

Actually, the Supreme Court decisions have not always supported the principle contained in the ERA. Recent case in point—the Lilly Ledbetter decision. Until we have the ERA, which would make “sex” a suspect class, like race and religion, then no matter how YOU might interpret the Supreme Court decisions, women are still technically second class citzens in the US. They have to rely on the courts’ interpretation of the law. As you know, interpretations leave women’s right vulnerable to the political winds—i.e. the appointment of Roberts and Alito. The Equal Rights Amendment is still very a vitally needed addition to the US Constitution.


I don’t think the ERA would actually materially impact Ledbetter, which was an issue of statutory law interpretation reaching beyond the scope of the ERA, which applies solely to the actions of government. If Congress had originally written what Ledbetter had wanted Congress to have written (e.g. you can sue for pay discrimination when you discover it rather than having to somehow magically know it was taking place), Ledbetter would have won her suit ERA or no ERA; since Congress failed to do so, she would have lost with the ERA in force just as she lost without it. In other words, the ERA would have given Congress the authority to enforce anti-pay-discrimination with appropriate legislation (reinforcing its existing 14th Amendment “equal protection” and “due process” authorities derived by the courts to be blanket anti-discrimination provisions), which is not the same as an obligation to enforce the ERA, just as the 14th Amendment does not obligate anyone to take affirmative action to hire minorities; that is a policy choice made in the Civil Rights Act of 1964 pursuant to Congress’ authority to enforce the 14th Amendment.

However I agree with your broader point that the ERA should nonetheless be proposed again and ratified even if the political impetus for it largely no longer exists for the time being, as a matter of housekeeping if nothing else. As I pretty much said (well, without taking the pro-ERA position, which is immaterial to the legal question) in the footnote.


But, don’t you think all the governor’s will be up in arms about this proposal. It takes away executive privilege!!!


They can be up in arms all they want, but they don’t get a veto. ☺

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