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CBOR-7Y: The Seven Years Amendment

Any unratified article of amendment to the Constitution of the United States which has been submitted to the States for ratification shall be inoperative unless it shall have been ratified within seven years of the date of its submission.

COMMENTARY:

The U.S. Constitution is both a very rigid and a very flexible legal document.

The Constitution is rigid because it takes a lot of public support to amend the Constitution — not only must two-thirds of Congress, or a convention called by two-thirds of the States, propose an Amendment, but three-quarters of the States (either in their own legislatures or in their own special conventions) must then ratify the proposed Amendment.

The Constitution is flexible, however, because it contains a special clause that eliminates the need for most Constitutional Amendments. That clause is called the “Necessary and Proper Clause”, and it is found in Article I, Section 8, where the specific powers of Congress (e.g., to tax, to raise a military, to coin money, to declare war, etc.) are enumerated. At the end of that finite list of enumerated powers comes this all-important final power:

The Congress shall have Power…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The powers of Congress are enumerated because the Founding Fathers had a clear vision of what the federal government should do and what should instead be left to the States. It is the enumeration of powers that enshrines in the Constitution the principle of limited government. But at the same time, the Founding Fathers had the foresight to know that Congress must also be empowered to do whatever it takes to accomplish the exercise of its enumerated powers — hence, the “Necessary and Proper Clause”.

For example, if Congress is specifically empowered by the Constitution to build a navy — and it is: “provide and maintain a Navy” is one of the enumerated powers of Congress — then the “Necessary and Proper Clause” automatically gives Congress power to, say, construct shipyards for building ships and schools for training seamen, for those are powers both necessary and proper for Congress to have for building a navy.

Thanks to the “Necessary and Proper Clause”, the Constitution only needs to be amended very rarely. In fact, I was taught in public school that the Constitution had only been amended a mere 26 times in over 200 years! (Compare that to the much less flexible Texas state constitution, which has been amended 474 times in under 150 years.)

200 years and only twenty-six Amendments means that amending the Constitution is a big deal. It doesn’t happen without a lot of public demand and fanfare. If it were to happen today, you’d almost certainly know about it.

So imagine my shock when, sometime in the mid-90s, I happened across a U.S. Government textbook telling me the Constitution now had twenty-seven Amendments! How in the world did that happen??

The 27th Amendment itself is unremarkable enough. Basically it says if Congress votes themselves a change in pay, that change can’t take effect until after the next Congressional election (which takes place every two years):

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

But how that Amendment became part of the Constitution — now that story is anything but “unremarkable”.

You see, the reason I had heard nothing about the 27th Amendment’s passage through Congress in my lifetime is that it didn’t pass through Congress in my lifetime.

It passed through Congress in 1789 with eleven other Amendments, ten of which you may have heard of — today they’re collectively called The Bill of Rights.

That’s right: The first Congress of the United States originally proposed twelve Constitutional Amendments in 1789 for ratification by the States. Ten were ratified and became “The Bill of Rights”. One was never ratified. And one was ratified over two hundred years later and became the 27th Amendment.

How is this possible? Well, once an Amendment is proposed by Congress (or by a Constitutional Convention, which has yet to happen), then unless that Amendment contains a provision for its own expiration, or unless Congress passes a law to expire it after a certain amount of time, it never expires. So it doesn’t matter how much time a proposed Amendment sits on the shelf collecting dust — so long as Congress included no expiration date in the Amendment or passed no law to expire it, that Amendment is still waiting for three-quarters of the States to ratify it.

It wasn’t until the passage of the 18th Amendment in 1917 that Congress realized that maybe an unlimited expiration date on Constitutional Amendments was a bad idea. Thus, the 18th Amendment was given a closing section declaring:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Likewise, the 20th, 21st, and 22nd Amendments all had similar clauses limiting their period for potential ratification to seven years.

But…shouldn’t all Amendments have a seven-year time limit?

Consider that with the exception of the 27th Amendment, no successful Amendment to the Constitution failed to be ratified within seven years. At four years, the 22nd Amendment holds the second-longest ratification period. So it turns out Constitutional Amendments, apparently by nature, either get ratified within a few years or fall into the dustbin of history as bad ideas. That makes seven years a reasonable amount of time for the States to process an Amendment and make up their minds about it.

Moreover, seven years is a long time in terms of federal politics. It’s nearly two presidential terms and four House terms long. The Senate has a chance to completely turn over in that length of time. And after seven years’ worth of new American voters have entered the electorate, it becomes reasonable to ask whether that changed electorate should be bound by Amendments proposed by Representatives and Senators it may not have elected. More importantly, if the political generation that proposed the Amendment decided not to pass it, for reasons that seemed clear at the time, can the Amendment’s continued obsolescence be safely entrusted to a future generation who might lack the earlier generation’s clarity and pass it? In other words, how long must a failed Amendment, with its hidden pitfalls, hang like a Sword of Damocles over the heads of our present government and its constituents?

Such “booby trap” Amendments do exist, by the way. There are still several failed Constitutional Amendments that the states may choose to ratify at any time.

Remember how I mentioned that the original Congress proposed the Bill of Rights, the 27th Amendment, and one other Amendment that was never ratified? That last Amendment had to do with deciding the size of the House of Representatives, which currently sits at 435. Were that Amendment to be ratified today, the number of Representatives would leap to over 6000. (If you thought the wheels of government turn slowly now….)

Or how about the Corwin Amendment? The 13th Amendment we all know and love, which abolished slavery, was proposed and ratified after the Civil War. But before the Civil War, Congress, attempting to appease the slave states threatening secession, desperately proposed a 13th Amendment (which now bears the name of its author Thomas Corwin instead) having the entirely opposite character:

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.

That Amendment is still out there, too, waiting for enough States to ratify it. Because of our present 13th Amendment, the ratification of this Amendment would not by itself reinstate slavery. However, what else might a State claim as a “domestic institution” that Congress will from that day forward have no “power to abolish or interfere…with”? It’s entirely up to the imagination.

But the most pressing example of a “booby trap” Amendment awaiting ratification is, by some arguments, the Equal Rights Amendment. Proposed by Congress in 1972, it was given a seven-year deadline in a separate piece of legislation. That deadline was legislatively lengthened to ten years, but even that deadline was reached without the Amendment’s having been ratified by a sufficient number of States. Yet there are proponents of the Amendment who claim it is still valid for ratification, and in early 2020 it received ratification from the 38th state required (had the ten-year deadline not already killed it).

The Equal Rights Amendment states in its first section:

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

Sounds simple enough, right? Sounds fair? Most people think so.

But what has America’s history shown that “equality of rights” means first and foremost, ever since Brown v. Board of Education? Isn’t it that it’s wrong to enforce a system that keeps different categories of people “separate but equal”? So what happens if “separate but equal” is no longer allowed when it comes to men and women? Does every public facility imaginable become coed? How about public restrooms? How about high school locker rooms and showers? How about prisons? Do we really want the kind of fully-coed society the Equal Rights Amendment might bring about?

The existence of all these “booby trap” Amendments (of which the ones listed above are not the only examples, by the way) are why the Seven Years Amendment exists. Its ratification would immediately expire every “booby trap” Amendment and affix a seven-year time limit to any Amendment proposed in the future — including the rest of the Amendments in the Cultural Bill of Rights (which do not themselves contain time limits to expire them)! So if you think the Amendments in the Cultural Bill of Rights should come with time limits, you’d better propose and ratify the Seven Years Amendment!

The Cultural Bill Of Rights
–CBOR-7Y: The Seven Years Amendment
–CBOR-RF: The Religious Freedom Amendment
–CBOR-2A: The New Second Amendment
–CBOR-CP: The Capital Punishment Amendment
–CBOR-ED: The Eminent Domain Amendment
–CBOR-17: The Senate Restoration Amendment
–CBOR-SC: The Supreme Court Amendment
–CBOR-QV: The Qualified Voters Amendment
–CBOR-AR: The Anti-Reparations Amendment
–CBOR-GS: The Gender Standardization Amendment
–CBOR-MS: The Marriage Standardization Amendment
–CBOR-PM: The Protection of Minors Amendment