How Failed Attempts to Amend the Constitution Mobilize Political Change

265 Pages·2017·1.472 MB·English

by  Roger C. Hartley

FAILED
How

ATTEMPTS
to

A MEN D
the

Constitution

M O B I L I Z E

Political Change
R O G E R C . H A R T L E Y
How Failed Attempts
to Amend the Constitution
Mobilize Political Change

How Failed Attempts
to Amend the Constitution
Mobilize Political Change
Roger C. Hartley
Vanderbilt University Press | Nashville
© 2017 by Vanderbilt University Press
Nashville, Tennessee 37235
All rights reserved
First printing 2017
This book is printed on acid-free paper.
Manufactured in the United States of America
Library of Congress Cataloging-in-Publication Data on file
LC control number: 2016042797
LC classification number: KF4555 .H39 2017
Dewey classification number: 342.7303/2—dc23
LC record available at lccn.loc.gov/2016042797
ISBN 978-0-8265-2148-4 (hardcover)
ISBN 978-0-8265-2149-1 (paperback)
ISBN 978-0-8265-2150-7 (ebook)
For Alice H. Cook and Herbert L. Sherman Jr.
Labor Educators

Contents
Acknowledgments ix
Introduction: The Problem 1
PART I. Lessons from the ERA
1 Amendment Efforts as a
Movement-Building Resource 9
2 Amendment Efforts as a Resource for Expressing
Dissent and Promoting Deliberation 34
PART II. Impact of Failed Amendment
Efforts on Congressional Politics
3 Prodding Congress through Use
of the Article V “Application Clause” 87
4 The Impact of Article V on Federal Legislation 109
PART III. Impact of Failed Amendment
Efforts on Federal Executive Policy
5 Failed Amendment Efforts and the President’s
War-Making and Foreign Relations Powers 131

Conclusion 157
Cases Cited 163
Notes 165
Bibliography 225
Index 241

Acknowledgments
I am indebted to many people who assisted in this book’s conception and
completion. My late faculty colleague Professor Stephen Goldman de-
serves special thanks for his early encouragement to convert into a book
preliminary ideas I initially thought were suited only for publication as a
law journal article. Over countless afternoon discussions assisting me in
refining my thesis, and by his reading and critiquing early draft chapters,
Steve helped guide the structure and enhance the quality of the final ver-
sion. In addition, I want to thank Steve Young, one of the extraordinarily
talented reference librarians at Columbus School of Law of the Catholic
University of America. Steve tracked down so many obscure references
for me that I long ago lost count. For his talent and dogged persistence,
I am both amazed and appreciative. I want to thank Deans Veryl Miles
and Daniel Attridge and Associate Dean Marin Scordato who supported
this effort by recommending and authorizing financial support from the
Catholic University Faculty Research Fund. Countless friends and col-
leagues have encouraged me along the way. They include Bill Osborne (and
the entire Osborne/McArdle family), Dos Hatfield, and Scott Shelley. I ask
indulgence and understanding of any who have been supportive but whom
I inadvertently have failed to list. Upon reading the initial manuscript,
Michael Ames, the Director of the Vanderbilt University Press, appreciated
immediately the political potency of failed constitutional amendment ef-
forts and helped move this project expeditiously to completion. Michael’s
insights and masterful editing skills have left their tracings throughout the
book. It is a markedly better book because of his input. And finally, with-
out the patience and encouragement of my wife Catherine Mack this book
could not have been written.
ix