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Published online by Cambridge University Press: 07 June 2022
Article V of the U.S. Constitution, which establishes the formal amendment procedure, sets perhaps the highest bar to reform of any national constitution, discouraging amendment. But despite these challenges, members of Congress have proposed nearly twelve thousand constitutional amendments, with most introduced after the New Deal, raising questions about why members engage in such seemingly futile efforts. We argue that the rise of judicial power following the New Deal substantially decreased the importance of Article V as a tool for constitutional reform. But, by largely abandoning this purpose, members of Congress have repurposed Article V as a mechanism for constitutional position-taking, even though—indeed, perhaps precisely because—their efforts at formal constitutional revision have little chance for success. Through a mixed-methods approach, we first document the shifting purpose of Article V at an aggregate level by coding all 11,969 proposed constitutional amendments throughout American history. We then substantiate the shifting purpose of Article V through a series of in-depth case studies focused on polygamy, women's suffrage, Equal Rights Amendments, and Federal Marriage Amendments. Taken together, this evidence helps us understand Article V as a repurposed institution and suggests that textually static constitutional provisions nonetheless may be open to reinvention at the behavioral level in subtle but important ways.
1 See David Dismore, “Suffrage Is Not Sufficient, The Lucretia Mott Amendment,” Ms. Magazine, July 21, 2020, https://msmagazine.com/2020/07/21/feminist-history-july-21/.
2 See Adam Clymer, “Dale Bumpers, Liberal Stalwart of Arkansas Politics, Dies at 90,” New York Times, January 2, 2016, https://www.nytimes.com/2016/01/03/us/dale-bumpers-liberalstalwart-of-arkansas-politics-dies-at-90.html?smid=tw-nytobits&smtyp=cur.
3 Dixon, Robert G., “Article V: The Comatose Article of Our Living Constitution?” Michigan Law Review 66, no. 5 (1968): 931–48CrossRefGoogle Scholar; Strauss, David A., “The Irrelevance of Constitutional Amendments,” Harvard Law Review 114, no. 5 (2001): 1457–505CrossRefGoogle Scholar; Robert A. Dahl, How Democratic Is the American Constitution? (New Haven, CT: Yale University Press, 2003); Albert, Richard, “Constitutional Disuse or Desuetude: The Case of Article V,” Boston University Law Review 94, no. 3 (2014): 1029–81Google Scholar.
4 Azari, Julia R. and Smith, Jennifer K., “Unwritten Rules: Informal Institutions in Established Democracies,” Perspectives on Politics 10, no. 1 (2012): 37–55CrossRefGoogle Scholar.
5 See, e.g., James Mahoney and Kathleen Thelen, “A Theory of Gradual Institutional Change,” in Explaining Institutional Change: Ambiguity, Agency, and Power, ed. James Mahoney and Kathleen Thelen (Cambridge, UK: Cambridge University Press, 2009), 1–37.
6 U.S. Const. art. V.
7 Albert, “Constitutional Disuse or Desuetude”; Dahl, How Democratic Is the American Constitution?; Dixon, “Article V: The Comatose Article of Our Living Constitution?”; Strauss, “The Irrelevance of Constitutional Amendments.”
8 Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People Can Correct It) (Oxford, UK: Oxford University Press, 2006), 160.
9 See Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford, UK: Oxford University Press, 2019), 95–138; Boris Shor, “Polarization in American State Legislatures,” in American Gridlock: The Sources, Character, and Impact of Political Polarization, ed. James A. Thurber and Antoine Yoshinaka (Cambridge, UK: Cambridge University Press, 2015), 203–21; Tsebelis, George, “Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism,” British Journal of Political Science 25, no. 3 (1995): 289–325CrossRefGoogle Scholar.
10 Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 2000); Bruce Ackerman, We the People: The Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2014); Levinson, Our Undemocratic Constitution, 159–66; Robinson Woodward-Burns, Hidden Laws: How State Constitutions Stabilize American Politics (New Haven, CT: Yale University Press, 2021).
11 Latham, Darren R., “The Historical Amendability of the American Constitution: Speculations on an Empirical Problematic,” American University Law Review 55, no. 1 (2005): 145–266Google Scholar. See also Huq, Aziz Q., “The Function of Article V,” University of Pennsylvania Law Review 162, no. 5 (2014): 1165–236Google Scholar; David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996); Strauss, “The Irrelevance of Constitutional Amendments.”
12 We derive this from a National Archives and Records Administration (NARA) data set that includes amendment-level data on introduction date, resolution type, resolution number, chamber, committee, sponsor, sponsor state, and content description for 1788–2014. We correct errors in the NARA data, use the congressional record to hand code amendments for 2014–2020, and code all amendments introduced 1788–2020 by policy topic, identifying common policy-relevant terms across amendment content descriptions and using conditional text string matching to identify individual amendments containing these terms. Amendments may match for multiple policy terms, though 11,359 of the 11,969 amendments match for four topics or fewer. For an extended discussion of this coding and for another use of the same data set by one of the authors, see Woodward-Burns, Hidden Laws, 15, 226–27 n. 52. For the original NARA data, see National Archives and Records Administration, Amending America: Proposed Amendments to the United States Constitution, 1787 to 2014 (Washington, DC: National Archives, 2016). https://www.archives.gov/open/dataset-amendments.html.
13 Robert G. McCloskey and Sanford Levinson, The American Supreme Court, 4th ed. (Chicago: Chicago University Press, 2005); Martin Shapiro, “The United States,” in The Global Expansion of Judicial Power, ed. C. Neal Tate and Torbjörn Vallinder (New York: New York University Press, 1995), 46–49; Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, NJ: Princeton University Press, 2007).
14 Some studies address amendment proposal in specific historical periods, like Reconstruction, or on specific topics, like judicial independence or electoral college reform. See, e.g., Tom S. Clark, The Limits of Judicial Independence (Cambridge, UK: Cambridge University Press, 2011); Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: Norton, 2019); Alexander Keyssar, Why Do We Still Have the Electoral College? (Cambridge, MA: Harvard University Press, 2020).
15 Bruce Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford, UK: Oxford University Press, 2016); Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2011).
16 Ackerman, We the People: Transformations; Eric Foner, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988).
17 Ibid.; Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2014).
18 Ackerman, We the People: The Civil Rights Revolution.
19 In these years, the Warren Court and the Department of Justice used the Fourteenth and Fifteenth Amendments and Commerce Clause to dismantle Jim Crow. Congress passed sweeping legislative statutes, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which restructured civil and voting rights even more so than the narrowly targeted voting reforms of the Twenty-Fourth and Twenty-Sixth Amendments. Ackerman, We the People: The Civil Rights Revolution .
20 Elizabeth Beaumont, The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy (Oxford, UK: Oxford University Press, 2014); Frances Fox Piven and Richard Cloward, Poor People's Movements: Why They Succeed, How They Fail (New York: Vintage, 1978); Sidney M. Milkis and Daniel J. Tichenor, Rivalry and Reform: Presidents, Social Movements, and the Transformation of American Politics (Chicago: University of Chicago Press, 2018).
21 Foner, The Second Founding; Simon J. Gilhooley, The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding (Cambridge, UK: Cambridge University Press, 2020).
22 Ann-Marie Szymanski, Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003); Sean Beienburg, Prohibition, the Constitution, and States’ Rights (Chicago: University of Chicago Press, 2019).
23 Dawn Langan Teele, Forging the Franchise: The Political Origins of the Women's Vote (Princeton, NJ: Princeton University Press, 2018).
24 Clark, The Limits of Judicial Independence; Mark, Alyx and Zilis, Michael A., “Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority,” Legislative Studies Quarterly 43, no. 1 (2018): 141–69CrossRefGoogle Scholar.
25 Arguably, the Eighteenth Amendment overruled Leisy v. Hardin (1890); however, because of the time between the decision and the adoption of the Eighteenth Amendment, we do not include it here. Some have argued that Barron v. Baltimore (1833) was overturned by the Fourteenth Amendment's privileges and immunities clause. See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1987); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge, UK: Cambridge University Press, 2014). But this position is not uncontroversial. See, e.g., Amar, Akhil Reed, “The Bill of Rights and the Fourteenth Amendment,” Yale Law Journal 101, no. 6 (1992): 1193–284CrossRefGoogle Scholar. For similar reasons, therefore, we do not list it here.
26 Amendments were counted as related if the description matched the topic of the Supreme Court decision. Case counts were restricted to five years before an opinion and up to twenty years after the court reached the decision. The five-year period before a decision was included to ensure that these counts included efforts of Congress to preempt judicial decision making on a particular topic. Some issues, like abortion, have remained on the Article V agenda for more than twenty years. Therefore, this figure undercounts Congress's response. Nonetheless, the standard approach allows for common comparison, except in two cases—Elk Grove Unified School District v. Newdow (2004) and Citizens United v. Federal Election Commission (2010)—for which twenty years have not yet elapsed since the decision was announced. Also note that in some instances, we combined cases because our coding methods could not distinguish between related cases with a sufficient degree of certainty. This was true for the child labor cases, Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922); the New Deal cases involving the National Industrial Recovery Act and the Agricultural Adjustment Act, Schechter Poultry v. United States (1935) and Butler v. United States (1936), respectively; and the reapportionment cases, Baker v. Carr (1962), Reynolds v. Sims (1964), and Wesberry v. Saunders (1964).
27 Clark, The Limits of Judicial Independence, 29, 36–46, 276–97; Geoffrey R. Stone and David A. Strauss, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (Oxford, UK: Oxford University Press, 2020), 40–51.
28 Stephen Skowronek, “The Reassociation of Ideas and Purposes: Racism, Liberalism, and the American Political Tradition,” American Political Science Review 100, no. 3 (2006): 385–401.
29 David R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 2004); Mark and Zilis, “Restraining the Court.”
30 McCloskey and Levinson, The American Supreme Court; Whittington, Political Foundations of Judicial Supremacy.
31 358 U.S. 1; Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford, UK: Oxford University Press, 2006); James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (Oxford, UK: Oxford University Press, 2002).
32 McCloskey and Levinson, The American Supreme Court, 128; see also Whittington, Political Foundations of Judicial Supremacy, 270–72; and United States v. Carolene Products Company, 304 U.S. 144, 152–53 n. 4 (1938).
33 Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6, no. 2 (1957): 279–95.
34 347 U.S. 483.
35 Walter F. Murphy, Congress and the Court: A Case Study in the American Political Process (Chicago: University of Chicago Press, 1962).
36 370 U.S. 421; 374 U.S. 203. Frances Fitzgerald, The Evangelicals: The Struggle to Shape America (New York: Simon & Schuster, 2017), 238–39.
37 Fitzgerald, The Evangelicals; Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America (New York: Viking, 2018); James A. Morone, Hellfire Nation: The Politics of Sin in American History (New Haven, CT: Yale University Press, 2004).
38 Congress has other tools for curbing the courts, including stripping jurisdiction, holding hearings into judicial decisions, or limiting the resources provided to it. Our measure of amendment introduction and Tom Clark's measure of court-curbing are only weakly correlated, though both peak in the late 1960s. Court-curbing bill introductions, which Clark interprets as taking a position of general opposition to court activism, correspond to some extent with Article V proposals to strip judicial jurisdiction, most of which occurred during four bursts of activity, including two in the eighteenth century and not covered by Clark's data. Twenty jurisdiction-stripping amendments were introduced between 1935 and 1937 to override the Court's Schechter decision, and Congress returned to this strategy in response to the Warren Court, introducing twenty-five amendments in a long stretch from 1952 to 1969 in reaction to the Court's progressive decisions. Court-curbing bills were similarly common during in the late 1930s and late 1960. But while only two jurisdiction-stripping amendments were offered after 1969, coinciding with the start of the Nixon administration, court-curbing bills in Congress persisted into the 1980s and increased substantially in the 2000s. The passage of court-curbing laws—rather than the introduction of bills—does not align with Article V introductions in general or Article V jurisdiction amendments: These laws peaked during the 1920s, 1930s, and the 1990s, but were stable throughout the 1950s to 1980s. Article V activity, even as it became increasingly directed against the Court, does not seem to be a simple function of court-curbing efforts. Clark, The Limits of Judicial Independence.
39 Anna Harvey, A Mere Machine: The Supreme Court, Congress, and American Democracy (New Haven, CT: Yale University Press, 2013).
40 Lowi, Theodore J., “Four Systems of Policy, Politics, and Choice,” Public Administration Review 32, no. 4 (1972): 299CrossRefGoogle Scholar.
41 Ibid., 300.
42 Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press, 2008); Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008); Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford, UK: Oxford University Press, 2015); Hollis-Brusky, Amanda and Wilson, Joshua C., “Playing for the Rules: How and Why New Christian Right Public Interest Law Firms Invest in Secular Litigation,” Law & Policy 39, no. 2 (2017): 121–41CrossRefGoogle Scholar; Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (Oxford, UK: Oxford University Press, 2016).
43 Our cases on polygamy, women's suffrage, the ERA, and same-sex marriage are substantively similar, concerning marriage and gender rights. But the cases differ in how they cut across parties. The polygamy and same-sex marriage cases did not initially cause intraparty divisions: Both parties initially uniformly opposed polygamy and same-sex marriage. In contrast, women's suffrage and the ERA both initially caused intraparty divisions: Both parties split internally over suffrage and the ERA. The ERA and same-sex marriage cases then evolved, causing interparty divisions in the late twentieth century, with Republicans homogenizing against the ERA and abortion in the 1970s and 1980s and same-sex marriage in the 1990s and 2000s. Republicans used the ERA and the FMA as wedges to break off and capture socially conservative Democrats. Similarly, on fiscal and budgetary restraint, another interparty division, Republicans proposed amendments for a balanced budget, the line-item veto, and appropriations and debt limits through the 1970s, 1980s, and 1990s, hoping to pick off fiscal conservatives from the fracturing Democratic coalition. See Woodward-Burns, Hidden Laws, 181–88; Daniel T. Rodgers, Age of Fracture (Cambridge, MA: Harvard University Press, 2011).
44 Both concerned the issue of discrimination on the basis of sex, but the substantive connections go further. Both advocates and opponents of women's suffrage regularly situated the demand for suffrage in relation to a broader set of discriminations that had either been partially dismantled (restrictions on the right of married women to own property, for example) or that suffrage threatened or promised to dismantle.
45 Teele, Forging the Franchise.
46 Admittedly, committee hearings provide members with repeated instances to take a position. Position-taking can be done quickly, through a single, brief statement for the record. But dedication of time and attention in committee, especially to technical aspects of an amendment that might not translate for constituents, suggests sincere member engagement beyond position-taking.
47 Herman Vandenburg Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History (Washington, DC: Government Printing Office, 1897), 190.
48 As Oregon Senator Joseph Dolph (R-OR) noted: “Even if it be admitted that the [Utah state] constitution could not be amended without the consent of Congress, no one at all familiar with the past history of the Mormon Church would expect to see a single Mormon punished for the crime of polygamy.” Congressional Record, 50th Congress, 1st Sess., 1888, 166–67; Congressional Record, 56th Congress, 1st Sess., 1900, 33, 4861–63. See also Reynolds v. United States 98 U.S. 145 (1879); Ulysses Grant, “Seventh Annual Message to Congress,” in Congressional Record, 44th Congress, 1st Sess., vol. IV (Washington, DC: Government Printing Office, 1876), 175, 180; Ames, The Proposed Amendments to the Constitution, 190, 272–78; Peter Crawley, “The Constitution of the State of Deseret,” Brigham Young University Studies 29, no. 4 (1989): 7–22; John J. Flynn, “Federalism and Viable State Government: The History of Utah's Constitution,” Utah Law Review 1966, no. September (1966): 311–25; Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002), 119–45; John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2015 (Santa Barbara: ABC-CLIO, 2015).
49 Woodward-Burns, Hidden Laws, 138–39, 280, n. 82–84.
50 Stein, Edward, “Past and Present Proposed Amendments to the United States Constitution Regarding Marriage,” Washington University Law Review 82, no. 3 (2004): 633Google Scholar. Utah's constitution originally included an antipolygamy provision when it was admitted to the union in 1896; a provision that still appears in its constitution (Utah Constitution, Article III).
51 Stein, “Past and Present Proposed Amendments,” 611–85.
52 Congressional Record, 50th Congress, 1st Sess., 1888, 166–67; Congressional Record, 56th Congress, 1st Sess., 1900, 33, 4861–63. See note 48.
53 Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865–1954 (Ann Arbor: University of Michigan Press, 2008).
54 Congressional Record, 56th Congress, 1st Sess., 1900, 33, 175, 180, 4862–63. See, also, Flynn, “Federalism and Viable State Government”; Stein, “Past and Present Proposed Amendments,” 631–34.
55 Committee on the Judiciary, U.S. House of Representatives, Hearing on Polygamy (February 25, 1902) (HRG-1902-HJH-0003, statement of Mrs. Fanny Hallock Carpenter).
56 Throughout the text, we differentiate between “suffragists” and “suffragettes,” using the former term for supporters of woman's suffrage while reserving the latter term for stanch movement activists.
57 Stephen Cresswell, Mormons and Cowboys, Moonshiners and Klansman: Federal Law Enforcement in the South and West, 1870–1893 (Tuscaloosa: University of Alabama Press, 1991), 79–132; Gordon, The Mormon Question, 107–16; Bridges, Amy, “Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States,” Studies in American Political Development 22, no. 1 (2008): 32–58CrossRefGoogle Scholar; Amy Bridges, Democratic Beginnings: Founding the Western States (Lawrence: University Press of Kansas, 2015), 59–102; Novkov, Racial Union, 51–64.
58 We offer here a seemingly rare example of position-taking through women's suffrage amendments. In early 1866, Elizabeth Cady Stanton and Susan B. Anthony petitioned Congress to enfranchise Black people and women. Representative James Brooks (D-NY) followed up on Stanton and Anthony's petition in the U.S. House of Representatives, but his behavior likely had ulterior motives. In conjunction with their petition, Brooks suggested modifying the draft Fourteenth Amendment's reduction in congressional representation for any state disenfranchising persons by race to extend also to gender. Although Brooks never formally offered this amendment, his intervention nonetheless speaks to the way that some members of Congress used women's suffrage to undermine the enfranchisement of Black men—Brooks's likely goal—rather than advance the cause of women's suffrage during this early period. Soon after his ambiguous support for suffrage, he defeated both a Republican opponent in his district as well as Elizabeth Cady Stanton, who had entered the congressional race to provoke further discussion of women's political rights. A few years later, he was one of three members of Congress who separately proposed that the pending Fifteenth Amendment forbid states from both racial and gender disenfranchisement. Of the three, only Brooks was opposed to the amendment in general. Whether sincere or not, his positions were calibrated so that they could be framed as an effort to defeat Black voting.
59 By 1900, of at least twenty-eight constitutional amendments introduced that touched directly on women's suffrage, twenty-one had been introduced by Republicans, three by Democrats, and one each from a Silver Republican and a Populist.
60 Susan B. Anthony, Letter from Anthony to Reed, George J. Mitchell Special Collections and Archives, Bowdoin College, Brunswick, December 15, 1887, https://mainestatemuseum.org/exhibit/suffrage/petitioning-the-legislature/.
61 On the West, see Teele, Dawn Langan, “How the West Was Won: Competition, Mobilization, and Women's Enfranchisement in the United States,” The Journal of Politics 80, no. 2 (2018): 48 442–61CrossRefGoogle Scholar; McCammon, Holly J. and Campbell, Karen E., “Winning the Vote in the West: The Political Successes of the Women's Suffrage Movements, 1866–1919,” Gender and Society 15, no. 1 (2001): 55–82CrossRefGoogle Scholar; Woodward-Burns, Hidden Laws, 112–23.
62 Butler's petition was followed by a bill by Parker (R-MO) to extend suffrage in the territories. Kelley (R-PA) then introduced a request by Isabella Beecher Hooker, Laura de Force Gordon, and Stanton to address the bar of the House. Though defeated, Hooker would be allowed to speak before the Senate Committee on the Judiciary, while the congressional delegate from Wyoming Territory introduced an Article V amendment.
63 In the 45th Congress, for example, an amendment was introduced in response to and in coordination with efforts by NASA to pass a “sixteenth amendment” to the Constitution, with the introducing member pairing the amendment with a petition from his constituents (Congressional Record, 45th Congress, 2nd Sess., vol. 7., January 10, 1878, p. 249).
64 As Vest noted on the creation of the select committee, “as soon as any subject becomes one of comment in the newspapers, or, respectfully I say it, a hobby with certain zealous partisans throughout the country, application is made to the Senate of the United States, and a special committee is to be appointed.” But while recognizing that this provided a dedicated forum for supportive senators to regularly publish their positions, he also noted that it was an important mechanism for advancing the goal of the suffragists: “This is simply a stop toward the recognition of woman suffrage.” As one member noted, by sending petitions to the Judiciary Committee—already overburdened—suffrage opponents hoped to bury it: “send the matter to the Judiciary Committee, for they never report on anything” (Congressional Record, 46th Congress, 3rd Sess., vol. 13, December 14, 1881, p. 120).
65 Congressional Record, January 4, 1893, p. 304; “Views of the Minority,” Senate Report 686, Part 2, 47th Congress, 1st Sess. (p. 70 of “Woman Suffrage,” Senate Doc. No. 1035, 62nd Congress, 3rd Sess.). Others noted that the “sole purpose of raising this committee is to have a committee-room” in which the arguments for women's suffrage could be given an appropriate hearing. Congressional Record, 46th Congress, 3rd Sess., vol. 13, December 16, 1881, p. 145.
66 Eleanor Flexner, Century of Struggle: The Woman's Rights Movement in the United States (Cambridge, MA: Belknap Press of Harvard University Press, 1980), 146; Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), 139–49; Beaumont, The Civic Constitution, 178–82; Teele, Forging the Franchise, 93–99.
67 On the reduction of congressional engagement, see Sara Hunter Graham, Woman Suffrage and the New Democracy (New Haven, CT: Yale University Press, 1997). A state-focused strategy was not incompatible with a national amendment. It “seems better to sow the seed of suffrage throughout the country,” argued Claudia Quigley Murphy, and then turn to the individual member of Congress, who was “but a reflex of the sentiment of his constituents.” But it had the advantage of allowing white supremacists and other racists and nativists a way of arguing that enfranchisement should be tailored to the specific context of the states, enabling the exclusion of Black women in particular. Ida Husted Harper, The Life and Work of Susan B. Anthony (Indianapolis: Bowen-Merrill, 1902), 218–19.
68 The 1880s saw 1.8 amendments introduced per Congress; the 1890s, 2.6; and the 1900s, two amendments. The high points before 1910 were the 54th Congress immediately after the organization of NAWSA and the victory of enfranchisement in Colorado (with four amendments).
69 Hearing on Woman Suffrage, H.J. Res. 112, Committee on the Judiciary, 60th Congress (Washington, DC: Government Printing Office, 1908), p. 8.
70 Carrie Chapman Catt, Woman Suffrage by Federal Constitutional Amendment (New York: National Woman Suffrage, 1917).
71 “Woman Suffrage in America,” Votes for Women 5, no. 266 (April 11, 1913): 401.
72 Stanton backed literacy tests at the 1902 NAWSA convention. Further, Southern NAWSA chapters excluded Black women from membership. David Morgan, Suffragists and Democrats: The Politics of Woman Suffrage in America (East Lansing: Michigan State University Press, 1972), 84–99; Flexner, Century of Struggle, 271–77; Linda G. Ford, “Alice Paul and the Triumph of Militancy,” in One Woman, One Vote: Rediscovering the Women's Suffrage Movement, ed. Marjorie Spruill Wheeler (Troutdale, OR: NewSage Press, 1995), 277–94; Keyssar, The Right to Vote, 161.
73 Beverly Zink-Sawyer, From Preachers to Suffragists: Woman's Rights and Religious Conviction in the Lives of Three Nineteenth-Century American Clergywomen (Louisville: Westminster John Knox Press, 2003), 219; Jeff Hill, Defining Moments: Women's Suffrage (Detroit: Omnigraphics, 2006), 72. See also Eleanor Flexner, Century of Struggle: The Woman's Rights Movement in the United States (Cambridge: Belknap Press of Harvard University Press, 1980), 286–92; Robert B. Fowler, “Carrie Chapman Catt, Strategist,” in One Woman, One Vote: Rediscovering the Women's Suffrage Movement, ed. Marjorie Spruill Wheeler (Troutdale: NewSage Press, 1995), 295–314; Aileen Kraditor, The Ideas of the Woman Suffrage Movement, 1890–1920 (New York: W.W. Norton, 1965), 231–48; Morgan, Suffragists and Democrats, 89–90, 97–99. For a broader discussion of how intraparty blocs in Congress, and the House especially, build electoral and interest-group support to challenge leadership, see Ruth Bloch Rubin, Building the Bloc: Intraparty Organization in the US Congress (Cambridge, UK: Cambridge University Press, 2017), 1–28.
74 Taylor, A. Elizabeth, “The Woman Suffrage Movement in Arkansas,” The Arkansas Historical Quarterly 15 (1956): 44CrossRefGoogle Scholar.
75 Corrine M. McConnaughy, The Woman Suffrage Movement in America: A Reassessment (Cambridge, UK: Cambridge University Press, 2015), 245.
76 Bradwell v. State of Illinois, 83 U.S. 130 (1873); Minor v. Happersett, 88 U.S. 162, 172, 175, 178 (1875).
77 410 U.S. 113.
78 Of course, women's support for the ERA was not entirely unanimous at this point—nor would it ever be. Maud Wood Park, chair of the League of Women Voters (LWV), warned Paul against the draft blanket ERA that threatened to overturn state-level women's labor protection and thus promised to “divide the women's movement” between ERA and labor advocates. Female trade unionists opposed Paul's draft ERA, as did the LWV. Nancy F. Cott, The Grounding of Modern Feminism (New Haven, CT: Yale University Press, 1987), 80–125. Park quoted in Cott, 74–125. See, also, Cott, Nancy F., “Feminist Politics in the 1920s: The National Woman's Party,” Journal of American History 71, no. 1 (1984): 57–59CrossRefGoogle Scholar; Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986), 8–10; Matthews, Burnita Shelton, “Women Should Have Equal Rights with Men: A Reply Comment,” American Bar Association Journal 12, no. 2 (1926): 117–20Google Scholar.
79 Walsh quoted in Kyvig, Explicit and Authentic Acts, 254–55, 394–400. See also The Textile Worker: Official Journal of the United Textile Workers of America XI (1923): 684; Equal Rights Amendment: Hearing before a Subcommittee of the Senate Judiciary Committee, 1929; Equal Rights Amendment to the Constitution: Hearings before the House Judiciary Committee 1932, 2, 24–25; Burnita Shelton Matthews, “A Federal Amendment Avoids Referendum Campaigns,” Equal Rights, December 29, 2019, 5; Geidel, Peter, “The National Woman's Party and the Origins of the Equal Rights Amendment, 1920–1923,” The Historian 42, no. 4 (1980): 557–82CrossRefGoogle Scholar; Susan D. Becker, The Origins of the Equal Rights Amendment: American Feminism Between the Wars (Westport: Greenwood Press, 1981), 15–111; Cott, “Feminist Politics in the 1920s”; Mansbridge, Why We Lost the ERA, 8–9; Mary Frances Berry, Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution (Bloomington: Indiana University Press, 1986), 56–68; Freeman, Jo, “Social Revolution and the Equal Rights Amendment,” Sociological Forum 3, no. 1 (1988): 145–47CrossRefGoogle Scholar; Roger C. Hartley, How Failed Attempts to Amend the Constitution Mobilize Political Change (Nashville: Vanderbilt University Press, 2017), 15–16; Gilbert Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington: Brookings Institution Press, 1985), 7–10.
80 The ERA won endorsements from the National Federation of Business and Professional Women's Clubs in 1937, the Republican Party in 1940, and the Senate Judiciary Committee in 1942, the Democratic Party in 1944, and both the Senate and House Judiciary Committees in 1945. Congressional Record, 79th Congress, 2nd Sess., 1946, 9399-401; “Report to the House Judiciary Committee” 1971, 5–6; “Report to the Senate Judiciary Committee” 1971; Jo Freeman, “The Origins of the Women's Liberation Movement,” American Journal of Sociology 78, no. 4 (1973): 147–48; Alan Pendleton Grimes, Democracy and the Amendments to the Constitution (Lexington, KY: Lexington Books, 1978), 147–53; Mansbridge, Why We Lost the ERA, 8–13, 36–44; Berry, Why ERA Failed, 58–64; Cynthia Harrison, On Account of Sex: The Politics of Women's Issues, 1945–1968 (Berkeley: University of California Press, 1988); Richard B. Bernstein and Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (New York: Random House, 1993), 140–42; Kyvig, Explicit and Authentic Acts, 397–408; Hartley, How Failed Attempts to Amend the Constitution Mobilize Political Change, 16–24; Steiner, Constitutional Inequality, 7–25.
81 Equal Rights Amendment: Hearing Before a Subcommittee of the Senate Judiciary Committee 1945, 146; Congressional Record, 79th Congress, 2nd. Sess., 1946, 9399–401; “American Women: Report of the President's Commission on the Status of Women” (Washington: President's Commission on the Status of Women, October 11, 1963), 35–48; “Report to the House Judiciary Committee,” House Report 92-359, 92nd Congress, Sess. 1, 1971, 5–6; “Report to the Senate Judiciary Committee,” Senate Report 92-689, 92nd Congress, Sess. 2, 1972, 1523-1524; Hearings before Subcommittee No. 4 of the Committee on the Judiciary of the House of Representatives, Ninety-Second Congress, First Session (Washington: Government Printing Office, 1971), 128–29; Freeman, “The Origins of the Women's Liberation Movement,” 147–48; Grimes, Democracy and the Amendments to the Constitution, 147–53; Steiner, Constitutional Inequality, 7–25; Mansbridge, Why We Lost the ERA, 8–13, 36–44; Berry, Why ERA Failed, 58–64; Harrison, On Account of Sex; Bernstein and Agel, Amending America, 140–42; Kyvig, Explicit and Authentic Acts, 397–408; Hartley, How Failed Attempts to Amend the Constitution Mobilize Political Change, 16–24.
82 404 U.S. 71; 411 U.S. 677; 429 U.S. 190. See Gretchen Ritter, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order (Palo Alto, CA: Stanford University Press, 2006), 215–60, 261–96.
83 Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011).
84 Though note that delayed ratifications of the 1972 ERA by Nevada in 2017, Illinois 2018, and Virginia in 2020 have reignited congressional debate, though not congressional position-taking through Article V proposals, as current advocates of the 1972 ERA tend to oppose introduction of a new, alternate amendment. Schermerhorn and an unnamed New York voter, quoted in Martha Weinman Lear, “You'll Probably Think I'm Stupid,” New York Times Magazine, April 11, 1976, 31, 112, https://www.nytimes.com/1976/04/11/archives/youll-probably-think-im-stupid-era.html. See Reed v. Reed, 404 U.S. 71 (1971), Roe v. Wade, 410 U.S. 113 (1973), Frontiero v. Richardson, 411 U.S. 677 (1973), Craig v. Boren, 429 U.S. 190 (1976), and Grimes, Democracy and the Amendments to the Constitution, 153; Mansbridge, Why We Lost the ERA, 12–14; Freeman, “Social Revolution and the Equal Rights Amendment,” 148; Bernstein and Agel, Amending America, 142–43; Sarah A. Soule and Susan Olzak, “When Do Movements Matter? The Politics of Contingency and the Equal Rights Amendment,” American Sociological Review 69, no. 4 (2004): 473–97; Hartley, How Failed Attempts to Amend the Constitution Mobilize Political Change, 40–46.
85 Phyllis Schlafly, “The Effect of ERAs in State Constitutions,” The Phyllis Schlafly Report August (1979): 4, https://eagleforum.org/publications/psr/aug1979.html; Iowans To Vote on State ERA, October 13, 1980, Jon Fleming, “ERA Showdown in Maine,” United Press International, November 2, 1984; Mansbridge, Why We Lost the ERA, 14; William Wayne Kilgarlin and Banks Tarver, “The Equal Rights Amendment: Governmental Action and Individual Liberty,” Texas L. Review 68, no. 7 (1990): 1546–49; Linda Brigance, “Equal Rights Amendment,” in Encyclopedia of American Social Movements, ed. Immanuel Ness (London: Routledge, 2015), 373–77; Marquez, Awilda, “Comparable Worth and the Maryland ERA,” Maryland Law Review 47, no. 4 (1988): 1129–87Google Scholar; Leslie W. Gladstone, Equal Rights Amendments: State Provisions (Washington: Congressional Research Service, 2004); Hartley, How Failed Attempts to Amend the Constitution Mobilize Political Change, 82–83, 159–60; John Dinan, State Constitutional Politics: Governing by Amendment in the American States (Chicago: University of Chicago Press, 2018), 81–84; Lisa Baldez, Epstein, Lee, Martin, and Andrew D., “Does the U.S. Constitution Need an Equal Rights Amendment?,” Journal of Legal Studies 35, no. 1 (2006): 243–83Google Scholar; Woodward-Burns, Hidden Laws, 173–76.
86 Senator Chuck Grassley (R-IA), Representative James Sensenbrenner (R-WI), and Senator Orin Hatch followed Schlafly in casting the ERA as an abortion-expansion measure. As Hatch put it: “there is clearly a genuine controversy here . . . the ERA may significantly enhance abortion rights.” Members used these reactionary amendments primarily for position-taking before constituents. Woodward-Burns, Hidden Laws, 176–80. See also The Impact of the Equal Rights Amendment: Hearings Before the Subcommittee on the Constitution of the Senate Judiciary Committee 1983, 28–29, 45–46, 83–87, 116, 263–64, 441–42, 511–12, 625–33, 657–58, 663; Equal Rights Amendment: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee 1983, 6–7, 22–25, 231–32, 317–18, 416–57, 699–714; Berry, Why ERA Failed, 70–85, 101–20; Kyvig, Explicit and Authentic Acts, 415–19.
87 Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009); Tina Fetner, How the Religious Right Shaped Lesbian and Gay Activism (Minneapolis: University of Minnesota Press, 2008), 24–25; Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century (New York: Liveright, 2017).
88 Morone, Hellfire Nation.
89 U.S. Constitution, Art. IV §1.
90 Sasha Issenberg, The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage (New York: Pantheon Books, 2021), 146.
91 Ibid., 147.
92 See, e.g., Congressional Record, 104th Congress, 2nd Sess., 10467–68 (Sen. Nickles).
93 Issenberg, The Engagement.
94 Ibid.
95 539 U.S. 558.
96 539 U.S., at 600 (Scalia, J., dissenting).
97 798 N.E.2d 941 (Mass. 2003).
98 Fitzgerald, The Evangelicals, 485; Issenberg, The Engagement.
99 Congressional Record, 107th Congress, 2nd Sess., 2511.
100 Fitzgerald, The Evangelicals, 485–86; Ackerman, We the People: The Civil Rights Revolution.
101 Pew Research Center, “Attitudes on Same-Sex Marriage,” 2020, https://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage/.
102 Craig A. Rimmerman, “The Presidency, Congress, and Same-Sex Marriage,” in The Politics of Same-Sex Marriage, ed. Craig A. Rimmerman and Clyde Wilcox (Chicago: University of Chicago Press, 2007), 281; Keith Perine and Jennifer A. Dlouhy, “Parties Wary of Political Risk in Stands on Gay Marriage,” CQ Weekly, January 10, 2004, 84–91.
103 Issenberg, The Engagement, 361.
104 Congressional Record, 108th Congress, 2nd Sess., 2044.
105 Keith Perine, “Congress Shows Little Enthusiasm for Bush's Marriage Amendment,” CQ Weekly, February 28, 2004, 532–34, http://library.cqpress.com.libproxy.albany.edu/cqmagazine/weeklyreport108-000001031552; Seth Stern, “Vote on Defense of Marriage Act Provision Treads Tricky Legal Ground in Limiting Courts’ Jurisdiction,” CQ Weekly, July 24, 2004, 1805.
106 Perine, “Congress Shows Little Enthusiasm”; Stern, “Vote on Defense of Marriage Act”; Editors of the New York Times, “Same-Sex Marriage: Bush's Remarks on Marriage Amendment,” New York Times, February 25, 2004, A18, https://www.nytimes.com/2004/02/25/us/samesex-marriage-bush-s-remarks-on-marriage-amendment.html; Elisabeth Bumiller, “Same-Sex Marriage: The President; Bush Backs Ban in Constitution on Gay Marriage,” New York Times, February 25, 2004, A1, https://www.nytimes.com/2004/02/25/us/same-sex-marriage-the-presidentbush-backs-ban-in-constitution-on-gay-marriage.html; Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford, UK: Oxford University Press, 2012), 103.
107 David Stout, “Bush Backs Ban in Constitution on Gay Marriage,” New York Times, February 24, 2004, https://www.nytimes.com/2004/02/24/politics/bush-backs-ban-in-constitution-on-gaymarriage.html; David D. Kirkpatrick, “Gay Activists in the G.O.P. Withhold Endorsement,” New York Times, September 8, 2004, A19, https://www.nytimes.com/2004/09/08/politics/campaign/gay-activists-in-the-gop-withhold-endorsement.html.
108 Carl Hulse, “Senate Vote Blocks Effort to Ban Gay Marriage in Constitution,” New York Times, July 14, 2004, https://www.nytimes.com/2004/07/14/politics/senate-vote-blocks-effort-toban-gay-marriage-in-constitution.html; Sheryl Gay Stolberg, “Same-Sex Marriage Amendment Fails in House,” New York Times, October 1, 2004, A14, https://www.nytimes.com/2004/10/01/politics/samesex-marriage-amendment-fails-in-house.html; Fellow, Laura, “Congressional Striptease: How the Failure of the 108th Congress's Jurisdiction Stripping Bills Were Used for Political Success,” William & Mary Bill of Rights Journal 14, no. 3 (2006): 1155Google Scholar.
109 Mark Carl Rom, “Introduction: The Politics of Same-Sex Marriage,” in The Politics of Same-Sex Marriage, ed. Craig A. Rimmerman and Clyde Wilcox (Chicago: University of Chicago Press, 2007), 1–38; Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?, 2nd ed. (Chicago: University of Chicago Press, 2008), 380–82.
110 Benjamin G. Bishin et al., Elite-Led Mobilization and Gay Rights: Dispelling the Myth of Mass Opinion Backlash (Ann Arbor: University of Michigan Press, 2021).
111 Klarman, From the Closet to the Altar, 112; Fitzgerald, The Evangelicals, 495–96; Seth Stern, “House Lacks Enough Support for Same-Sex Marriage Amendment,” CQ Weekly, July 24, 2006, 2044.
