Researching Proposed but Failed Amendments to the US Constitution
In the wake of the recent election, there’s been a lot of talk about amending the Constitution regarding the Electoral College, or making other structural changes.1 When I was writing my article In Search of the Trade-Mark Cases about a decade ago I discovered that there had been eight attempts to amend the Constitution to provide for federal trademark law in the United States without the limitations of the Commerce Clause, such as they are.2 I was surprised to discover this, and I wanted to share some of the research methods for finding Constitutional Amendments that did not succeed through US history.
There have been over 11,000 proposed amendments to the US Constitution.3 However, a comprehensive survey of proposed amendments to the Constitution is surprisingly challenging. The simplest solution nowadays is to use Lexis Congressional, but that’s a subscription service and isn’t easily available to most.4. Michael J. Lynch’s short article The Other Amendments is an excellent start,5 pointing a reader to indices that provide constitutional amendments proposed by Congress:
- 1789-1889: Herman v. Ames, The Proposed Amendments to the Constitution of the United States During its First Century of History (1897)
- 1889-1929: Michael A. Musmanno, Proposed Amendments to the Constitution (1929) (also includes amendments proposed before 1889).
- 1926-1962: Proposed amendments to the Constitution of the United States of America, introduced in Congress from the 69th Congress, 2d session, through the 87th Congress, 2d session, December 6, 1926, to January 3, 1963
- 1963-1968: Proposed Amendments to the Constitution of the United States Introduced in Congress from the 88th Congress, 1st Session through the 90th Congress, 2d Session, January 9, 1963 to January 3, 1969, S. Doc. No. 91-38, 91st Cong., 2d Sess. Washington, D.C.: U.S. Government Printing Office, 1969. (does not seem to be online except through paid databases)
- 1969-1973: Davis, Richard, Proposed Amendments to the Constitution of the United States Introduced in Congress from the 91st Congress, 1st Session through the 98th Congress, 2d Session, January 1969–December 1984. CRS Report No. 85-36 GOV. Washington, D.C.: Congressional Research Service, Library of Congress, 1985. (I only scanned the pages for the 91st and 92nd Congresses because Congress.gov takes over at the 93rd Congress – I now regret this omission).
- 1973-Present: Indexed at Congress.gov.
I hope this list is at least somewhat useful. Looking through these lists, it’s clear there’s a failed Constitutional Amendment for everyone.
- Proposals to amend the Constitution to modify or abolish the Electoral College are a long tradition, with at least 700 officially proposed amendments on the subject, according to Fairvote. ↩
- There were two attempts in the years immediately following the Supreme Court’s 1897 Decision in the Trade-Mark Cases, another two in 1911 and 1913, most likely surrounding protecting trademarks at the Pan-Pacific Exhibition, and four from 1949-1955, which stemmed from the movement for a registration-based federal trademark system. This is discussed at length at the end of my article. ↩
- The WaPo Article describes a proposed 1911 Amendment to allow Congress to regulate migratory birds as being “unusual,” but any con law nerd will recognize that this was part and parcel of the controversy that led to Missouri v. Holland less than a decade later. ↩
- And even many libraries that subscribe don’t have the Congressional Bills and Resolutions portion of the database ↩
- The Department of Justice also has a useful guide on its website ↩