must approve any proposed amendment and as a proxy for population those states

Must approve any proposed amendment and as a proxy

This preview shows page 29 - 31 out of 33 pages.

must approve any proposed amendment and (as a proxy for population) those states must together have two-thirds of the voting Representatives in the House. 118. See, e.g. , Coleman v. Miller, 307 U.S. 433, 450 (1939) (holding that the question whether Kansas had properly ratified the proposed Child Labor Amendment was for Congress, not the Court, to determine); Leser v. Garnett, 258 U.S. 130, 136 (1922) (rejecting challenge to the Nineteenth Amendment that “so great an addition to the electorate . . . destroys . . . [the] autonomy [of a state] as a political body”); Dillon v. Gloss, 256 U.S. 368, 374 (1921) (rejecting an argument in a prisoner’s habeas corpus petition that the Eighteenth Amendment was unconstitutional because Congress, in imposing a seven-year time limit for the states to ratify the Amendment, had burdened the deliberative processes of the states); National Prohibition Cases, 253 U.S. 350, 386 (1920) (rejecting several challenges to the Eighteenth Amendment). 119. For an argument along these lines, see Jason Mazzone, Unamendments , 90 I OWA L. R EV . 1747 (2005).
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144 D UKE J OURNAL OF C ONSTITUTIONAL L AW & P UBLIC P OLICY [V OL . 13:2 The ratification bar of section 6 is particularly significant for ensuring broad support for any amendment. Given the current number of states and Representatives, ratification would require the vote of 26 states with 290 Representatives. While there are various combinations of states that can reach that threshold, proposed amendments will fail without national support. In particular, if the four largest states decide against ratifying a proposed amendment, it is almost certainly doomed: California (53 U.S. Representatives), Texas (36), Florida (27), and New York (27) together have 143 Representatives. If they all vote against a proposed amendment, ratification will require approval in nearly every other state. Defeat in the next largest state, Pennsylvania (18 Representatives), would mean the amendment will fail, as would defeat in New Mexico, Nebraska or West Virginia (3 Representatives each). These mechanisms provide significant safeguards against adoption of poorly thought out, minimally discussed, or hastily made constitutional changes. Significant reform is possible—that is the whole point—but only reforms that generate broad support over a sustained period of time will succeed. Thus, for example, some judicial decisions are initially very unpopular and provoke calls for a constitutional amendment but with time generate less opposition. This has been true with respect to same-sex marriage 120 and flag burning. 121 Such decisions are not likely to be targets for amendment. 120. When Massachusetts became the first state to legalize same-sex marriage, see Goodridge v. Dep’t of Pub. Health , 789 N.E.2d 941 (Mass. 2014), a clear majority of Americans supported amending the federal Constitution to prohibit same-sex marriage throughout the country. See Nat’l Survey , supra note 101 (reporting that 64% of Americans supported amending the Constitution to define marriage in all states as the union of a man and a woman).
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