Saturday, December 6, 2008
A convention to end Prohibition? I'll drink to that
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution... which... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..." (Emphasis mine, U.S. Constitution Article V.)
You may have seen in the news that yesterday was the seventy-fifth anniversary of the ratification of the Twenty-first Amendment, which repealed the Eighteenth Amendment and ended Prohibition. Something that doesn't often get mentioned is that the Twenty-first was the only amendment which was ratified by ad hoc conventions consisting of specially elected delegates. All the other amendments were ratified by the legislatures of the several states (Anastaplo, The Amendments to the Constitution: A Commentary, 1995, p. 203). Congress chose the convention route because in those pre-Baker v. Carr days rural areas, in which anti-liquor feelings were strongest, tended to have the majority of representatives in state legislatures. Special conventions in which delegates were elected to vote on one and only one issue were more likely to vote in favor of ending Prohibition, and that is ultimately what happened.
In discussing this, Anastaplo makes an interesting argument about a famous proposed amendment of the 1970s that failed to pass:
"If the proponents of the Equal Rights Amendment had anticipated in 1972 the organized resistance they eventually encountered, they would have been well-advised to have chosen the State-conventions mode of ratification. This would have permitted, in effect, a national referendum on an issue that women, as voters, probably could have controlled instead of having to rely upon largely male State legislatures elected in other circumstances and on other issues." (p. 203)