The Twentieth Amendment and Lame-Duck Sessions
So my Twenty-Sixth Amendment post got a lot of pushback. (BTW, I didn’t say that I thought that state laws providing that alcohol may not be sold to 20-year-olds are unconstitutional. I just wanted to raise the question of how you read constitutional provisions.) The response went something like this. The text only does what it does. Reading it more expansively is inappropriate. Now I agree that this is true if that text is specific (the Fourteenth Amendment is a different animal) and if a broad reading is inconsistent with the original understanding. So if it’s clear that the Framers of the 26th Amendment did not want to change the age of majority more generally, that’s good enough for me.
Now think about the following issue, which is addressed in an excellent article by John Nagle that came out recently. The 20th Amendment reset the start of a new Congress to January. The purpose of this text (as is overwhelmingly clear from the debates in Congress) was to end lame-duck sessions. People thought that lame-duck sessions were illegitimate and should be abolished.
Why, then, do we still have lame-duck sessions? (And they do a lot of stuff, BTW.) The answer is that Congress can still meet between Election Day and the start of January. Why didn’t the drafters of the Twentieth Amendment do something about that? It appears that they thought it would be logistically impossible for Congress to convene and do anything before January 3rd (an easier assumption to make in the 1930s). Or they just thought that nobody would bother since it was clear what the Amendment meant. Oops.
Let’s suppose that a law is passed in the lame-duck session this Fall and someone brings a challenge to the courts claiming that this law is invalid under the Twentieth Amendment. It’s easy to see how that claim would be rejected. Congress can pass a statute in December 2012 under the text of the 20th Amendment and many lame-duck Congresses have enacted laws since the 1930s. (Indeed, one even impeached a President.) On the other hand, lame-duck sessions do contradict the original understanding of the 20th Amendment. What to do?