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January 8, 2010
When and Why State Legislative Ratifications of Constitution Amendments Became Incredibly Difficult
While modern lawyers assume that state ratification of a constitutional amendment is incredibly difficult, IUPUI law prof Gerard N. Magliocca's recently SSRN-posted article, The Child Labor Amendment and the Court-Packing Plan, documents that this interpretation only emerged in 1937 as the deliberate product of Franklin D. Roosevelt's campaign to discredit Article Five in favor of judicial "reform." This very interesting article presents new material on Franklin D. Roosevelt's Supreme Court-packing plan and its relationship to the Child Labor Amendment. From the abstract:
"[When the Child Labor Amendment was passed by Congress in 1924], there was a consensus that state legislatures were little more than a rubber stamp for amendments. Indeed, foes of the CLA sought to block the proposal in Congress by seeking to require ratification by state conventions. Even after the CLA was blocked in the States during the 1920s and 1930s, that did not alter the basic premise that state legislative ratification was generally easy.
President Roosevelt changed all of this in 1937 by making the CLA into the paradigmatic case for Article Five instead of the exception that it actually was. He did this in two steps. First, he gave a high-profile endorsement to the proposal even though he knew that it was not going to be ratified anytime soon. Then he used that failure as a leading argument for Court-packing in his public statements about that proposal. This provoked a unorthodox response in Congress and a deep inquiry into Article Five that ended abruptly when the Supreme Court executed its switch-in-time on March 29, 1937.
By demonstrating that the view of state legislatures as a massive obstacle to constitutional change is largely a self-fulfilling construction, this Article hopes to provoke a new discussion about the merits of using the amendment process.