Be Birch Bayh

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Edited by Joey Chan, Elizabeth Adams, Owen Andrews, and Sarah Ahmad

When you think of those who have had the greatest effect on the Constitution, your mind is often transported back some 250 years, to the time of quill pens and powdered wigs. However, this should not be the exclusive reaction. One twentieth century United States Senator from Indiana, building off of national events, successfully shepherded two amendments to the Constitution to ratification and nearly had four. Today, Birch Bayh sits in history as the only person not named James Madison to author multiple amendments. Despite the Founding Father’s accomplishments, people view the Constitution as outdated, a dead document, and a relic of another time. Now more than ever, though, the Constitution and our country need people with the energy of Birch Bayh, with the fire to enact change for the nation.

Bayh almost never got the chance to make what is now his greatest legacy, though. Before Bayh took over the Senate Judiciary Subcommittee on the Constitution from Estes Kefauver (D-MO), there were discussions of eliminating the group altogether. After taking it over, however, he undertook necessary action.

When the shots rang out in Dallas, the nation mourned for Kennedy — but legal experts had questions about the transfer of power. Did Lyndon Johnson take on the powers of the president immediately? Did he do so upon the oath? Was this in an acting or an official capacity? In 1965, along with Emmanuel Celler (D-NY) in the House, Bayh introduced H. J. Res. 1. Although a slimmed-down version had been proposed by Kefauver, the Bayh version covered more circumstances and had the backing of President Johnson. Proposed in January, it passed in July 1965 and was ratified by a sufficient number of states early in 1967. This amendment resolved the questions above and saved the nation from possible future constitutional crises. The powers in the 25th Amendment have been exercised by presidents up to the present day, with Joe Biden temporarily transferring power to Vice President Harris during a surgery being the most recent case. Although Kennedy’s untimely death proved a lightning rod for drawing attention to this gap in the Constitution, Bayh was able to channel the country's urgency to enact significant, lasting change.

A few years later, in 1971, Bayh had an opportunity to make an impact again — and depending on the metric, he enjoyed even greater success than before. Congress had recently passed a law lowering the voting age to 18 in federal, state, and local elections, but the Supreme Court invalidated this rule for state and local elections. With states facing the possibility of creating (and the expense of maintaining) two separate voter rolls, the amendment enjoyed unanimous passage in the Senate. Over 95 percent voted in favor in the House. The amendment was then ratified by the necessary number of states in three months. Although it may seem that Bayh was just in the right place at the right time, his experience before and track record after point to a deep interest in enacting amendments that answered problems of national interest.

These two constitutional amendments meant Bayh’s presence in the annals of history was assured. However, he did not stop working. His work on the Equal Rights Amendment and other equality-focused legislation would take up the second half of his senatorial career, as would his push to modify the Electoral College system. However, it should be remarked that he did not just write amendments — as chair, his committee passed an amendment to grant congressional representation to D.C. Although the amendment failed to attain sufficient approval in the states, it is, as of today, the last constitutional amendment to be sent to the states.

Before that point, though, he helped to push the Equal Rights Amendment through Congress. He felt personally invested in this law, partially due to his wife being turned away from her dream school — the University of Virginia. The Amendment ultimately fell just short of ratification before the deadline. Several states ratified after the deadline, and the amendment lies in a semi-ambiguous state, with a declaration from President Joe Biden in his final days being the latest in a mildly confusing history. Bayh also had a tremendous impact in enacting Title IX legislation, which still carries its effect on colleges and universities nationwide.

As his senatorial career wound down — Bayh was ultimately defeated by future Vice President Dan Quayle in 1980 — Bayh made one last go at an amendment, and perhaps this last one would have been the most impactful of all. This amendment would have abolished the Electoral College and set up a direct popular election of the president. Although it passed by a wide majority in the House, it failed in the Senate due to a filibuster led by Strom Thurmond and a gaggle of predominantly southern senators, confoundingly supported by Black and Jewish groups based out of New York that feared losing influence. Bayh continued to support Electoral College reform after his time in the Senate up until his death in 2019.

Sure, Bayh is a figure of history, but what is he beyond that? He is one of one in contemporary times due to his authorship status, but perhaps that is exactly the point. The United States Constitution has been ratified for 236 years at this point. There have been 27 amendments to the Constitution. This would suggest an average of one amendment about every 8 years — a slow pace, but not unreasonable when considering that many of the most recent amendments had a seven-year ratification deadline. However, amendments are not equally spread out. Most notably, the Bill of Rights were all passed quickly after the Constitution itself. Still, it must be noted that the last one to reach ratification was in 1992 (although it was originally proposed in the 1780s). It has now been well over 30 years since any amendment has passed out of Congress. This has no doubt contributed to modern views of the Constitution as a document out of its time.

What the United States needs now are people like Birch Bayh in positions of power, who wish to rock the boat, to swing for the fences, and to push for real change. The effort required is tremendous; of this there is no doubt, but the reward is a document that has had life breathed into it — a document that is supposed to be responsive to the people. Pushing for such wide change obviously opens an avenue for blowback — but that may be necessary, for change is not bad. Birch Bayh is the only non-Founding Father to have authored more than one constitutional amendment. Let politicians be willing to exert themselves so that Bayh is not alone. The United States Constitution is the shortest of any major government, but it does not have to be by any means. Be Birch Bayh — be the person that pushes our Constitution kicking and screaming into the twenty-first century.