Friday, June 01, 2018

The "ratification" of the ERA

Sandy Levinson

I must say that part of me is appalled by the argument being made that the ERA is still on the table for ratification, so that it is therefore legally significant that Illinois and other states are "ratifying" it.  Unless one makes the altogether untenable arguments that a) Congress cannot impose a time limit on the consideration of proposed amendments and b) that states have no right to rescind earlier ratifications prior to the addition of a proposed amendment to the Constitution, then the ERA, alas, died as a legal possibility in 1982 (assuming of course, that Congress had the power to extend the time for ratification).  

Let me offer the following analogy:  As many of you know I consider the United States a basically illegitimate institution because of the indefensible allocation of equal voting power to each state.  Yes, I know it was part of the Great Compromise that made the Constitution possible, but the same is true of protections of slavery, and the Senate has nothing more to commend itself than did the three-fifths clause.  We got rid of the latter, at the cost of 750,000 lives; we're still stuck with the former.  So imagine, as is not at all empirically unlikely, that  legislation clearly supported by a majority of the country as demonstrated both in national polls and by taking into account the actual number of constituents of the respective senators, in the votes of members of the Senate, is nonetheless defeated in the Senate by a majority of senators representing, say, 30% of the national population. (Recall that over 50% of the U.S. population lives now in nine of the fifth states, which means, by definition, that less than half of the total population gets 82% of the total 100 senators). One can refrain the example by adding the filibuster.  Thus the Dream Act would clearly have passed in December 2010 and enthusiastically been signed by the President had GOP senators not filibustered it in the Senate.  This was not "majority rule," but pure "tyranny of the minority."

One really doesn't have to imagine what happened in December 2010.  But one would have to imagine President Obama holding a "signing ceremony" in the Oval Office, while making the altogether correct argument that the legislation had majority support and he simply wasn't going to recognize the legitimacy of the filibuster as an obstructionist tactic.  I assume that (almost) all of us would say that he really couldn't do that, even if we agreed that the GOP obstructionism was morally and politically outrageous.  Any attempts to "enforce" the "legislation" would, I presume, have been rebuffed by the judiciary on the ground that it was only ersatz-legislation.  

So what, exactly, is the difference between by story about the Dream Act and the argument that the ERA is still up for ratification?  


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I think I'll just say "altogether untenable arguments" is debatable.

Given past comments, further comment is likely to be redundant or off topic, so I think I'll end there.

Oh, there are several significant differences Sandy. I'll send the article draft when it's ready.


Sandy Unless one makes the altogether untenable arguments that a) Congress cannot impose a time limit on the consideration of proposed amendments and b) that states have no right to rescind earlier ratifications prior to the addition of a proposed amendment to the Constitution...

Would you care to explain your reasoning?

Where does Article V grant Congress the power to place time or any other limit on the power granted states to hold ratification votes?

Where does Article V grant states the power to rescind previous ratifications? The grant of power to hold a ratification vote does not imply the opposite power of recission.

Thanks in advance.

I think the better analogies would be:

(1) The House and Senate pass a bill that says it only becomes law if the president signs it within 24 hours. The president signs it after 48 hours. The entire bill, including the 24-hour provision, thus becomes law, according to the Constitution. The 24-hour provision is plainly unconstitutional, and it seems to me that the remedy should be to sever it, not strike down the entire law. To do otherwise would effectively allow congress to shorten the president's signing period.

The ERA's proponents have a tougher case because all they have is constitutional silence, rather than a constitutionally specified ratification period. And it seems reasonable that after a couple of hundred years, congress could have concluded that it's a bad idea to keep stacking up live amendments. But I'm not sure that makes their argument untenable.

(2) Once the House and/or Senate passes a bill, I don't think it can change its mind, even if the other body or the president hasn't acted yet. Similarly, once Congress has proposed an amendment, can it withdraw it? I wouldn't think so. (If it can, that destroys the argument that Congress needs to be able to put time limits on ratification.) Certainly a state cannot rescind its approval once ratification is complete. On this one, I think the ERA's proponents have the better argument.

"the Senate has nothing more to commend itself than did the three-fifths clause."

My jaw dropped when I read this. You can't possibly mean it - slavery, which was required to give the three-fifths clause force, was one of the greatest moral evils that our planet has ever witnessed. To say that the relative malapportionment caused by the structure of the Senate is even in the same universe of illegitimacy and immorality - well, I'm going to have to assume you don't really mean it.

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The three-fifths clause was designed to establish disproportionate representation in the House (and the Electoral College), and the Senate was designed to have disproportionate representation. In that respect they are comparable. The post did not imply that the undemocratic nature of the Senate is as great a moral evil as slavery.

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"The three-fifths clause was designed to establish disproportionate representation in the House"

Yes, it was. It was intended to reduce the political representation of slave states. The default, remember, is that those who couldn't vote DID count, 1 for 1, for purposes of representation. Children, women, disenfranchised criminals, they all counted 1 for 1.

Only slaves counted for less, reducing the political power of the states that held them. With no such clause, slaves would have counted 1 for 1, also, and the slave states would have had more power in Congress.

Would a 0/5ths clause have been better? Sure, if you could have still had a united states, instead of secession occurring 70 years earlier. That's why it's called the three-fifths compromise: They reduced the representation of slave states as much as they could without prompting the slave states to reject the Constitution and go their own way.

I truly hate the gross political lie that's become so common, that the 3/5ths compromise was a pro-slavery clause. It was an anti-slavery clause, and everybody knew it. It only started getting called pro-slavery a few decades ago, when the left decided that it needed to discredit the Constitution as all about protecting slavery, and lying about the 3/5ths clause would be a good start.

There ARE clauses in the Constitution that are genuinely odious. Say, the fugitive slave clause. "No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due."

But the three-fifths clause is not one of them.


Brett, your comment is valid only if one presumes that it would have been just to give the slave states FULL representation in Congress for their slaves, even though those states did not represent the interests of their slaves in Congress, as they represented the interests of the white children and white women in their states. (I don't mention white disenfranchised criminals because I don't know whether they were disenfranchised back then, or if disenfranchisement came about as part of Jim Crow.) To presume that it would have been just to give the slave states ANY representation in Congress for their slaves would be ridiculous.

I forget who, but someone said that, because the slave states consider slaves to be property, it would make as much sense to include them in determining the number of representatives as it would to include the number of cattle in those states.

It was Elbridge Gerry, who was the vice president under Madison and who gave his name to "gerrymandering."

The slave state delegates to the Convention were thrilled with the 3/5 clause (and other pro-slavery provisions) and said so. They used it as a pro-ratification argument in the Southern state conventions.

As a full-time troll at this Blog, Brett exposes himself as a student of revisionist history on the subject of slavery under the Constitution.

"Brett, your comment is valid only if one presumes that it would have been just to give the slave states FULL representation in Congress for their slaves,"

I had absolutely nothing to say about justice. I simply pointed out that the default rule was that non-voting groups were counted for representation purposes, and that the 3/5ths compromise represented a reduction in the representation of the slave states relative to that default position.

The revisionist history is the history that claims that the 3/5ths compromise was purely a gift to the slave states. When a "compromise" is exactly what it was, splitting the difference between what the two sides wanted, in order that a flawed Constitution could be ratified, instead of a better one not being ratified.

The abolitionists might have negotiated harder, but the perception at the time was that slavery was in a decline, and would be weakening over time. Later historical developments, such as the invention of the cotton gin, unfortunately changed that.

Brett, What "default rule" do you refer to? I don't think that a rule could have existed before the Constitution was ratified. Is the default rule just your own? If so, then my default rule is that white non-voting groups were counted for representation purposes, or that non-slave (white or black) non-voting groups were counted for representation purposes. Under my default rule, the 3/5ths compromise represented an increase in the representation of the slave states relative to that default position.

I take your points that you were not commenting on the justice of the matter, and that the 3/5 clause was a compromise.

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Since a few people commented on it, I'll just state my opinion on the 3/5 Compromise.

It was an anti-slavery clause, and everybody knew it.

Brett pushes the quite valid "compromise" argument but cannot leave it there.

As Mark Field notes, the provision was seen as a benefit to the slave states. Slavery was a powerful interest at the time, including those who didn't own slaves but profited from it. The Constitution was going to have to -- in 1787 -- live with it somehow. Like now, we live with very bad things too. So, like Benjamin Franklin said in "1776," not being demigods, they had to compromise with evil.

Slaves were not seen as members of the political community. This made them different from women, children, non-property owners and even free blacks (contra to Taney, accepted at least in some states as members). So virtual representation for them would not follow a similar "default" rule.

This made counting them somewhat controversial, but again, it was a compromise. Previously, each state had one vote. Now, in one house, states broke down by population. But, slaves was a special sort of "person" (something many slaveowners basically ignored), including as economic units (one means banded about to figure out representation and appropriate requirements as to taxation). Thus, the compromise. BTW, slaves were treated as "persons" in certain ways, so were not mere property. They even sometimes had a right to counsel (e.g., Missouri freedom suits).

The "odious" nature of the Fugitive Slave Clause is unclear unless you are not going to recognize slavery at all. At the time, especially if putative slaves were given due process rights in fair hearings before being seized, it was accepted practice in each state, even Massachusetts, to return putative fugitive slaves.

The 3/5 Compromise was in place because it was recognized that states could have slavery and that the slaves were rightly only counted by 3/5. Once you do that, unequal laws for free blacks become reasonable, the very citizenship of blacks can be questioned. There is something "odious" about this, but in 1787, it was a practical necessity akin to letting states deny women the right to vote.

And, though how exactly it will play out was unknown (some were more sure slavery was on the decline than others), the compromise did give additional power to states with a smaller political community. Free women at least had some rights to speak out and petition, even if they could not vote in the republic being crafted. And, one that in the process would benefit slave interests. So, this too was an odious component of the compromise.

Brett rarely comments on the justice of matters. One doesn't have to read between Brett's lines to understand where he stands on racial, speech, religion, guns, issues and yes, gender as demonstrated by Brett at both Gerard's post and Sandy's post on ERA. Brett obviously looks at justice for minorities and others without power as a personal zero-sum game.

Henry's point about the lack of any pre-existing rule is a good one. It's important to remember that the 3/5 rule was originally adopted in 1783 as a compromise on *taxes*. It had nothing to do with slavery per se (all states other than MA had slaves at that time), nor with voting (all states voted as units in the Confederation Congress). The 3/5 scheme was adopted in the Constitution in order to allocate *votes*, which is a very different thing, particularly when one is claiming to institute a republic.

Joe's point about compromise is also well-taken. The 3/5 rule was not adopted in a vacuum. It was part of a wide-ranging compromise, parts of which we can reconstruct (equal representation in the Senate; Congressional power to regulate commerce) and parts of which we can infer (abolition of slavery in the Northwest Territory). Plus some other clauses related to them.

Because it was part of a compromise, it's impossible to describe the 3/5 clause as any sort of "defeat" for the South. As I said above, their representatives were very happy with the result; SC, for example, ratified the Constitution quickly and by a margin of more than 2-1.

Is there a breakdown somewhere on how states handled apportionment of state legislators at that time? How did a Northern state with a significant slave population, e.g., apportion its state legislature including heavy slave areas?

I don't know enough of state rules at that time to give a definitive answer. In VA, they mostly drew lines to protect slaveholding interests. The coastal areas (lots of slaves) were disproportionately represented compared to the Piedmont and areas west (few slaves). That continued until the Civil War, and it's one reason WV was so ready to break away.

AFAIK, they didn't try to draw lines based on population, but to cover, say, counties. This may not have mattered much, since voting was restricted to property owners.


Ok, so I found this paper which discusses state apportionment from 1776-1920:

For the period we're discussing here's the bottom line (be sure to read fn. 1, because older charters would be much less representative):

"For the first three decades after 1776, a majority of state constitutions adopted apportioned legislative districts using geography as a basis - fixing in the constitution the number of legislators that each county or other subdivision would receive.1
Even this approach, however, appears at least in part to have taken population into account because these geography-based apportionment schemes often gave additional representation to counties or cities with greater population. Moreover, population was more evenly spread across rural and urban counties prior to the rapid urban population growth of the late nineteenth and early twentieth centuries, so apportionment by county did not create the disparities it would today.

Of the original thirteen states, only two expressly apportioned by population in their first postindependence constitutions – Pennsylvania and Massachusetts.

1 We analyzed only constitutions enacted from 1776 forward; we did not study colonial charters which remained active during the early years of statehood in some states."

The whole thing is only 9 pages, so it's worth reading.


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Note: As to PA, which had about 3700 slaves in 1790, they used "taxable inhabitants."


Certain delegates argued that counting slaves would be absurd so it seems rather logical to then ask how they specifically handled things. But, basic discussions do not appear to talk about such things. Confusion about "default rules" there is understandable. The Constitution is in respect to apportionment and other things (such as eligibility to office) somewhat ahead of its time.*

I will take my own state -- NY -- particularly since it had a sizable slave population (Sojourner Truth is perhaps the most famous). Reference is made to a census of "electors and inhabitants" but the preset numbers set by the state constitution are only to be updated as necessary if they are not proportional to the electors. Cf. Art. I of the Federal Constitution

Let's go to South Carolina. The Constitution of 1790 allots by region. Not clear how they figured out the numbers. The 1808 version counted "white inhabitants" and the Senate by region. There is a rather convoluted description of exactly how this is done. But, even free blacks are not counted for this purpose.


* There is not always a match there -- e.g., some anti-federalists were called out for caring so much about rights or structural restraints being absent in the proposed federal constitution when their own states did not protect such or such.

President Trump's claimed, via his lawyers, power to obstruct justice is the power to destruct justice: absolute power. A constitutionally claimed exception to no one being above the law. Shades of Nixon's "When the President does it, that means it is not illegal"

To The Federalist Papers! Trump is the Anti-Federalist.

Aside: the 3/5ths clause explicitly excluded "Indians not taxed" from the count. Should we conclude that Congresspeople did not (and perhaps still do not) represent the interests of the Native Americans resident in their constituencies? In antebellum America, they represented the interests of their slaves the way they represented the interests of their dogs and cattle.

“Indians not taxed” weren’t counted because the Indian tribes were independent, sovereign states in their own right, and so most Indians weren’t Americans. Except for those who had left their tribes and joined American society, thus becoming subject to taxation by that society.

President Trump, via his lawyers, abrogates America's longstanding "the rule of law, not of men" governance with "the law of the rule of the President." It's time to rain on, rein in and reign over Trump's "parade of horrors."


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