In 1972, both chambers of Congress passed the Equal Rights Amendment (ERA) and sent it to the states for ratification. It fell short. End of story, right? Wrong. Every so often, this most famous of unratified amendments flops out of the dustbin of history and is declared a valid and legal part of the Constitution by many – though notably, the Archivist of the United States has never been among them. But the ERA wasn’t the only one to come close – or to boast a lingering following years later.
Since 1789, Congress has approved 33 constitutional amendments – but only 27 made the cut. Six failed after being sent to the states. And while the ERA may be the most famous, some of the others maintain a following and technically still stand a chance.
Understanding Amendments
Before we get into the almost amendments, let’s quickly go over the two pathways to passage. Going the legislative route means passing an amendment through both chambers of Congress by a two-thirds vote and then having three-fourths of the states ratify it. Alternatively, if at least two-thirds of the states request it, Congress must call a convention for the proposal and discussion of the amendment. Any ratified by three-quarters of the states – either legislatively or during a convention – are then recorded by the Archivist of the United States and become part of the US Constitution.
Despite the low number of amendments approved by Congress and an even lower number ratified, there have been more than 11,000 proposals. Interestingly enough, the last amendment ratified was one of the first proposed. Though it was number two out of twelve proposed in what became the Bill of Rights, the 27th Amendment took almost 203 years. Put forward in 1789, it became our most recent constitutional change in 1992. Now, whenever Congress votes to grant itself a pay raise, the change can’t take effect until the next session.
Equal Rights – But for Whom?
On October 12, 1971, the US House of Representatives passed the Equal Rights Amendment, which prohibited discrimination based on sex, with an overwhelmingly bipartisan vote of 354 to 24. On March 22, 1972, the Senate did the same, 84 to 8. It was then sent to the states for ratification but with an expiration date. The amendment had to win over the required three-fourths of the states (38 out of 50) by March 22, 1979. That seven-year deadline was then extended to ten, granting states until June 30, 1982, to get on board. Still, the amendment fell short.
Even by this extended deadline, just 35 of the required 38 states had ratified. The ERA was, by the language of its own legislation, dead.
Only it wasn’t. Every year since, a new version has been introduced to Congress, and states went on “ratifying” the 1972 would-be amendment long after the deadline passed. Nevada was Number 36 on March 22, 2017, 45 years to the day after Congress sent it to the states. Illinois followed suit in May of 2018, and Virginia became the 38th in January of 2020.
Some argue this means the ERA should be added to the Constitution. Former President Joe Biden tried to make it happen, but the Archivist didn’t record it. That refusal carries into the second Trump administration, as well – though this time, the sitting president agrees. That’s not all the drama, however. Five states voted to rescind ratification. Nebraska, Tennessee, Idaho, Kentucky, and South Dakota all recanted before the March 22, 1979, deadline. Furthermore, North Dakota adopted a resolution in 2021, stating that its ratification had lapsed in 1979.
Five More – How Different Things Could Be
While the original Second Amendment eventually became the 27th, the first in that draft remains unratified and is technically still eligible for ratification. The proposed amendment would restructure the House of Representatives. There are those who support growing the House today, but if the specific language of this bill became law now, setting the maximum ratio to one representative for every 50,000 people would require quite a few elections, and fast. The 2024 population of around 340 million would require at least 6,800 congressmen!
The Titles of Nobility amendment was passed by the 11th Congress in 1810, and it could have cost some Americans their citizenship. Simply put, any US citizen who accepted a title of nobility or honor – or received a gift without congressional approval – would see citizenship revoked.
Congress backed this play overwhelmingly. Given the times, it’s likely the goal was to separate this new nation from the European aristocracy. Twelve states – Maryland, Kentucky, Ohio, Delaware, Pennsylvania, New Jersey, Vermont, Tennessee, North Carolina, Georgia, Massachusetts, and New Hampshire – ratified the proposal between 1810 and 1812.
What would have become the 13th Amendment needed a 13th ratification. After the War of 1812, it never happened – or so that’s how the story goes. Some say it was ratified by Virginia in 1819. It appeared as a full amendment in many published versions of the Constitution for more than three decades afterward, including the official United States Statutes at Large, according to the National Constitution Center. As the story goes, John Colvin, editor of the 1815 book of statutes, couldn’t figure out for sure if the Titles and Nobility Amendment had actually been ratified, so he included it with a note explaining the situation. Later, an official version of the Constitution was reportedly given to members of Congress and included the amendment. Eventually, this confusion led President James Monroe to ask Secretary of State John Quincy Adams to confirm it was not ratified.
Another amendment thwarted by a war was called the Corwin Amendment. Passed in 1861, this proposed change read: “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.” It’s pretty clear, given what was going on in the nation at the time, that this targeted the abolition movement and aimed to protect the right of slave states to remain slave states. However, given the probably intentionally vague wording, it protected state sovereignty in domestic policy in general. Abraham Lincoln even contacted governors in hopes of convincing them to support the amendment – presumably as a last-ditch effort to avoid the Civil War. But war came anyway, and the amendment failed, though it is still eligible for ratification. But the 13th Amendment we got abolished slavery and involuntary servitude, except as punishment for a crime.
The Child Labor Amendment passed Congress in 1924 but fell short with just 28 states. Like the pro-slavery amendment, this one is still eligible for ratification, but history has left it behind. In 1938, FDR signed the Fair Labor Standards Act, which was then upheld by the Supreme Court in 1941.
Finally, we come to statehood for Washington, DC. In 1961, the 23rd Amendment was ratified and granted DC presidential electors equal to the number of senators and representatives the District would have had if it were a state. That’s why DC gets three electoral votes despite not being a state or having voting representatives or senators in Congress. The District of Columbia Voting Rights Amendment, passed in 1978, would have repealed the 23rd and given DC full statehood – meaning one representative (based on population) and two senators, as well as the three electors it presently has. Like the ERA, this is a popular cause championed by many on the left. However, this amendment came with an expiration date. When the 1985 deadline passed, only 16 of the required 38 states had ratified.
Just six amendments were approved by Congress but left unratified by the states – yet, for better or for worse, almost any of them would have resulted in a drastically different United States than we know today. Now, remember that Congress approved just 33 out of more than 11,000 proposals. From protecting slavery and revoking citizenship to flooding the legislature with thousands of representatives, there was wisdom in the Founders’ decision to make amending the Constitution so difficult.
