More Amendments Lurk in the Mists of History
By RICHARD L. BERKE

" AMENDMENTS to the Constitution ought to not be too frequently made . . . (if) continually tinkered with it would lose all its prestige and dignity, and the old instrument would be lost sight of altogether in a short time." When President Andrew Johnson said that in 1866, did he really expect the states to dillydally for 200 years before ratifying Constitutional amendments?

That's what happened. Congress last week blessed an amendment banning midterm pay raises for its members. It was drafted by James Madison in 1789 and ratified by the critical 38th state only last May 7. Stunned that the 27th Amendment was pulled out of political hibernation and dusted off to become law two centuries later, legal scholars and politicians are fretting about four other proposed amendments that are lurking about. None, however, has a serious chance of emerging from the status of footnote.

"These are historic oddities," said David C. Huckabee, an analyst for the Congressional Research Service. "None of the unratified amendments have active campaigns going on to ratify them, like with the Congressional pay amendment." Ratifying that one became an irresistible political sport for the Class of 1992, which was seeking to distance itself from any sign of self-dealing. Representative John Boehner, an Ohio Republican who delightedly pressed the case, said the other proposals would never pass. But after thinking for a moment, he was less certain. "Who ever thought 100 years ago that the Madison amendment would ever pass?" he asked. "Or 50 years ago? Or 20 years ago?"

Mr. Boehner is worried enough to consider introducing a resolution, like one proposed by Senator Robert C. Byrd, a West Virginia Democrat, to eliminate the possibility of ratifying the other forgotten amendments. "It's just a matter of tidiness," he said. "We ought to clean up these things that are just hanging around " While the pay raise amendment caused a stir on Capitol Hill, the others, if passed, would certainly create wider commotion. The oldest proposed amendment -- designed to assure the possibility of a bigger Congress -- was offered by James Madison in 1789. If passed today, the apportionment formula would allow Congress to swell to as many as 5,000 members, though it would not be required to do so. The proposal has been ratified by 10 states; the last was Vermont in 1791.

The second lingering measure, the "Titles of Nobility Amendment," was proposed in 1810 and ratified by 12 states by 1812. Born of the same egalitarian spirit that led George Washington to insist on being Mr. President and not His Highness, it would revoke the citizenship of anyone who accepted a title of nobility or a gift from "any emperor, king, prince or foreign power" without the consent of Congress. If this were law, what would have happened to General H. Norman Schwartzkopf, who picked up honors from foreign powers after the Persian Gulf War? Or Grace Kelly, who became the Princess of Monaco?

The third proposed amendment that is still technically alive would prohibit Congress from banning slavery. Proposed in 1861, when the states that formed the Confederacy were in rebellion, it was ratified by Ohio that year and by Maryland in 1862. But Congress passed the 13th Amendment, prohibiting slavery, in 1865 and it was ratified the same year.

In 1924, after the Supreme Court twice held that Congress could not second-guess states in child labor cases, the fourth proposed amendment was introduced. Ratified by 28 states, it would serve no purpose today; a later Supreme Court changed its position.

Some argue that worrying about these leftover amendments should be abandoned to those with a curiosity about Congressional history. Paul Gerwitz, a professor at Yale Law School, contended that there was an "implicit time limit" and such amendments should not see the light of day. He said the four outstanding amendments "show you the danger of the notion that amendments live forever -- but I don't think there's any realistic chance that people are going to start disempowering Congress from abolishing slavery."