Ben Pontz covers state and local government for PA Post. He previously worked as an Associate Producer with Smart Talk. He is a graduate of Gettysburg College where he double majored in political science and public policy with a minor in music and he served as editor-in-chief of the campus newspaper, The Gettysburgian.
June 29, 2020 | 5:00 AM
Courtesy Gov. Tom Wolf's Flickr page
The Pennsylvania State Capitol building on Monday, June 22, 2020.
Against the backdrop of a clash between Gov. Tom Wolf and the GOP-led state legislature that has reached the Commonwealths highest court as well as statewide protests in support of the Black Lives Matter movement, a pair of constitutional amendments one addressing emergency powers, the other addressing racial equality has passed the Pennsylvania Senate and awaits consideration in the House of Representatives.
To amend the Pennsylvania Constitution, a resolution must pass both chambers of the legislature by simple majority in consecutive legislative sessions and then, after being advertised in newspapers in every Pennsylvania county, be approved by voters as a ballot question.
It is a high bar. Dozens of proposed amendments are introduced each year in the legislature, but far fewer actually pass one or both chambers once, let alone in consecutive legislative sessions, according to data compiled by Duquesne University Law School.
That is to say that it is fairly noteworthy that the Pennsylvania Senate passed by Senate Bill 1166 earlier this month. What is particularly notable, though, is that the bill contains two separate and distinct amendments in one.
Constraining the governors authority during emergencies has been a priority of Republicans throughout the pandemic. When that was the only component to the resolution, it passed in committee along party lines. On the floor of the full Senate, though, Sen. Vincent Hughes (D-Montgomery & Philadelphia) proposed a second amendment be included in the resolution, the need for which he said recent incidents of police brutality had laid bare. Hughess amendment would forbid discrimination under the law on the basis of race and ethnicity, and senators were unanimous in voting to add it to the emergency powers amendment.
If the amendments were to eventually reach the ballot, they would do so separately, meaning that a voter could theoretically vote for one and not the other. But in the legislature, packaging the two together may explain the broad bipartisan support the underlying bill received. When it came time to vote on the entire bill, it passed 44-6.
Sign up for The Context, our daily newsletter about governing and governments across Pennsylvania.
Preventing that type of logrolling is exactly why the Pa. Constitution has a separate provision requiring that legislation be limited to a single subject, a principle commonly known as the single subject rule. But that rule does not apply to resolutions proposing constitutional amendments, said Michael Dimino, a professor of law at Widener University Commonwealth. Neither he nor Bruce Ledewitz, a law professor at Duquesne University who directs the law schools project on the Pennsylvania Constitution, could recall an example where two constitutional amendments had been proposed in a single package like this. But Ledewitz said Article 11 of the Pennsylvania Constitution, which details the process for amendments, hints that this approach may be just fine because it states that when two or more amendments shall be submitted they shall be voted upon separately.
The next stop for the amendments is the House State Government Committee, where Chairman Garth Everett (R-Lycoming) said he has no specific plans at this point to consider them.
Ledewitz said that the emergency declaration amendment strikes him as the type of amendment that might make it through both chambers in one session but may not have legs in a second session.
Cooler heads will prevail, and it wont seem so pressing. Itll go to the back burner. This is the perfect example of one that might not pass next time, he said.
Wolf has repeatedly defended his ongoing use of emergency powers. His press secretary, Lyndsay Kensinger, said only that the administration is monitoring the proposed amendments.
Emergency powers have formed the basis of much of the governors work to respond to the coronavirus including suspending evictions and utility shutoffs, allowing doctors from other states to practice in Pennsylvania, and, at least in part, closing businesses. Whether the business closure orders and the governors phased reopening plan could continue without emergency powers is a question currently before the state Supreme Court. But declaring an emergency gives the executive branch flexibility to respond to a crisis, and under the proposed constitutional amendment, that flexibility would end after 30 days unless the legislature passes a resolution agreeing to an extension.
Supporters of the amendment say that recalibrating checks and balances in times of emergency is important no matter what happens in the current dispute.
A proposed constitutional amendment is what I consider the long game. It is a serious and dramatic remedy for when the operating principles of state government diverge too far from the checks and balances that are central components to our system, said Sen. Lisa Baker (R-Luzerne), who was a top staffer during the Ridge and Schweiker administrations and assisted them in responding to emergencies. It is time for the legislative branch to have a shared responsibility to help the people of Pennsylvania prepare, recover, and respond to emergencies.
Through this pandemic, we have shown that there are gaps in our ability to govern during these times, said Sen. Lisa Boscola (D-Lehigh & Northampton). Allowing for a more regular voice of the legislature during these times will reassure people that the decisions are not as partisan and that many voices are being heard. In the end, though, what I like about the constitutional amendment is that it leaves power to the people to make decisions about what they want to happen during these extraordinary times.
The potential implications of the amendment outlawing racial discrimination are less clear. The Pennsylvania Constitution already forbids state government from discriminating against any person in the exercise of any civil right, and the Fourteenth Amendment to the U.S. Constitution already guarantees equal protection and due process under the law.
The existing language in the state constitution has been analyzed by both state and federal courts largely the same way as the Fourteenth Amendment. But, because Pennsylvanias Constitution enumerates specific rights, such as education, the anti-discrimination language it contains can underpin legal challenges alleging unequal treatment in more policy areas. In 2012, for example, a court ruled that a claim that the revocation of the charter for a charter school that served primarily students of color was discriminatory could proceed under the state constitution, but not the federal constitution.
On the floor of the Senate, Hughes said the amendment would legally enshrine ideals that have never been fully realized.
It is clear to anyone and everyone that discrimination based on race is cooked into the DNA of this nation, said Hughes. It is reflected in our long and troubling history in Pennsylvania, reflected in the documents that are the foundation of this nation, reflected in how we educate our children, how we lend money, how we provide housing how we hire people, how we provide health care, and, most recently and most in our face, how we police, how we protect communities. The need for additional protections are based on that history. The need to advance those protections are based on understanding the DNA, the long-troubling history, and the reality that exists in this nation right now.
Hughess office said that on an issue as important as prohibiting race-based discrimination, Pennsylvanias Constitution ought to be clear because state constitutional provisions interpreted by state courts often provide greater protections than similar federal constitutional provisions interpreted by federal courts.
The language of the proposal mirrors that of the Equal Rights Amendment, a proposed amendment to the U.S. Constitution to outlaw discrimination on the basis of sex that Pennsylvania ratified and added to its own constitution in 1971.
In Pennsylvania, that amendment has been the subject of litigation over access to school sports, car insurance rates, and employment benefits. But it does not give private citizens the ability to sue private employers for sex discrimination, the Pennsylvania Superior Court found in 2008.
In other words, the Pennsylvania constitutions prohibition on sex discrimination does not circumscribe, prohibit, or limit the conduct of private citizens or private entities, so an amendment prohibiting racial discrimination likely would not affect private entities in areas where there is not separate legal justification prohibiting discrimination.
Dr. Jessie Ramey, Director of the Womens Institute at Chatham University in Pittsburgh, said in an email that in addition to specific legal protections, equal rights amendments provide symbolic and cultural significance.
Hughes argued that the amendment transcends symbolism. Pointing to Trump judicial nominees that, he said, have a track record of discrimination, Hughes said that federal courts may not be equipped to protect Pennsylvanians civil rights, which ought to heighten the urgency of this amendment at the stat level.
Its been offered up, its presented to us, and it stares us directly in our face every day, every hour, said Hughes. We must seize these protections, we must secure these protections at all costs.
PA Post is an independent newsroom covering policy and government in Pennsylvania. For more, go to http://www.papost.org.
- Alan Keyes on the Second Amendment and gun rights [Last Updated On: April 2nd, 2011] [Originally Added On: April 2nd, 2011]
- Obama And The Second Amendment [Last Updated On: April 2nd, 2011] [Originally Added On: April 2nd, 2011]
- Suzanna Gratia-Hupp Second Amendment [Last Updated On: May 20th, 2011] [Originally Added On: May 20th, 2011]
- Attack of the Second Amendment [Last Updated On: May 21st, 2011] [Originally Added On: May 21st, 2011]
- The Second Amendment died in New Orleans [Last Updated On: May 21st, 2011] [Originally Added On: May 21st, 2011]
- Suzanna Gratia-Hupp What the Second Amendment is REALLY For [Last Updated On: May 24th, 2011] [Originally Added On: May 24th, 2011]
- The Alex Jones Show - LIVE - June 24th Second Amendment Special [Last Updated On: May 30th, 2011] [Originally Added On: May 30th, 2011]
- SA@TAC - Second Amendment Remedies [Last Updated On: June 1st, 2011] [Originally Added On: June 1st, 2011]
- You Choose '08 Spotlight: Ron Paul on the Second Amendment [Last Updated On: June 2nd, 2011] [Originally Added On: June 2nd, 2011]
- IGOLD, Guns, Second Amendment Rights in Illinois and the Madigans [Last Updated On: June 3rd, 2011] [Originally Added On: June 3rd, 2011]
- Gun Law (Second Amendment) [Last Updated On: June 11th, 2011] [Originally Added On: June 11th, 2011]
- Ron Paul on the Second Amendment (feat. Rachel) [Last Updated On: June 15th, 2011] [Originally Added On: June 15th, 2011]
- "The Sing-Along Second Amendment" by Roy Zimmerman [Last Updated On: June 15th, 2011] [Originally Added On: June 15th, 2011]
- Herman Cain on Second Amendment and Abortion [Last Updated On: June 26th, 2011] [Originally Added On: June 26th, 2011]
- Second Amendment Legislative Update with Larry Pratt of Gun Owners of America [Last Updated On: June 29th, 2011] [Originally Added On: June 29th, 2011]
- Alan Gottlieb w/the Second Amendment Foundation: Guns Save Lives Campaign - Las Vegas [Last Updated On: June 30th, 2011] [Originally Added On: June 30th, 2011]
- Bloomberg's Anti Gun Ad Suggests Second Amendment Enables Terrorists [Last Updated On: July 1st, 2011] [Originally Added On: July 1st, 2011]
- Gamer Walkthrough: Just Cause 2 - A Second Amendment [Last Updated On: July 1st, 2011] [Originally Added On: July 1st, 2011]
- WNY Truthers Obama Administration Caught Running False Flag Against Second Amendment [Last Updated On: July 4th, 2011] [Originally Added On: July 4th, 2011]
- Dr. Suzanna Hupp Explains The Second Amendment [Last Updated On: July 4th, 2011] [Originally Added On: July 4th, 2011]
- Re: Let's Get Real about the Second Amendment [Last Updated On: July 12th, 2011] [Originally Added On: July 12th, 2011]
- On the Rights and Privileges of the Second Amendment [Last Updated On: July 12th, 2011] [Originally Added On: July 12th, 2011]
- Second Annual Knife Rights Sharper Future Award, Sandy Froman [Last Updated On: July 12th, 2011] [Originally Added On: July 12th, 2011]
- Obama Administration Caught Running False Flag Against Second Amendment [Last Updated On: July 13th, 2011] [Originally Added On: July 13th, 2011]
- Citizens Arming Against Flash Mobs [Last Updated On: July 14th, 2011] [Originally Added On: July 14th, 2011]
- Sharron Angle's "Second Amendment Remedies" Statement Is NOT Rhetoric! [Last Updated On: July 15th, 2011] [Originally Added On: July 15th, 2011]
- Celebrate! Second Amendment Saturday [Last Updated On: July 17th, 2011] [Originally Added On: July 17th, 2011]
- Gibbs Passes Amendment to Protect Second Amendment Rights [Last Updated On: July 19th, 2011] [Originally Added On: July 19th, 2011]
- Sen. Jerry Moran: Second Amendment rights not negotiable [Last Updated On: July 29th, 2011] [Originally Added On: July 29th, 2011]
- Second Amendment and My 20 Second Video Intro [Last Updated On: August 2nd, 2011] [Originally Added On: August 2nd, 2011]
- Super Congress To Target Second Amendment.avi [Last Updated On: August 10th, 2011] [Originally Added On: August 10th, 2011]
- Tribute to the Second Amendment [Last Updated On: August 20th, 2011] [Originally Added On: August 20th, 2011]
- what the second amendment means to me. [Last Updated On: August 23rd, 2011] [Originally Added On: August 23rd, 2011]
- Patriot Pastor explains the Second Amendment [Last Updated On: August 26th, 2011] [Originally Added On: August 26th, 2011]
- Exercising My Second Amendment Right [Last Updated On: August 31st, 2011] [Originally Added On: August 31st, 2011]
- Second Amendment Range Pack Review [Last Updated On: September 3rd, 2011] [Originally Added On: September 3rd, 2011]
- The Second Amendment-Hero or Villain? [Last Updated On: September 4th, 2011] [Originally Added On: September 4th, 2011]
- Just Cause 2 the reapers stronghold takeover A Second Amendment [Last Updated On: September 5th, 2011] [Originally Added On: September 5th, 2011]
- Infowars Special Report With Sheriff Richard Mack: Obama's Stealth Attack on The 2nd Amendment 4/4 [Last Updated On: September 5th, 2011] [Originally Added On: September 5th, 2011]
- 57 Senators Sign Letter Telling To Protect Second Amendment Rights From United Nations [Last Updated On: September 7th, 2011] [Originally Added On: September 7th, 2011]
- Infowars Special Report With Sheriff Richard Mack: Obama's Stealth Attack on The 2nd Amendment 1/4 [Last Updated On: September 9th, 2011] [Originally Added On: September 9th, 2011]
- Liberal Mayors Are Freaking Out 'The Second Amendment' [Last Updated On: September 17th, 2011] [Originally Added On: September 17th, 2011]
- The Second Amendment Will Not Be Violated! [Last Updated On: September 21st, 2011] [Originally Added On: September 21st, 2011]
- Cooking Up A Collective Right: How a Mythical Monster Nearly Swallowed the Second Amendment Whole [Last Updated On: October 2nd, 2011] [Originally Added On: October 2nd, 2011]
- Marijuana Activist Debates Former ATF Head on Second Amendment [Last Updated On: October 9th, 2011] [Originally Added On: October 9th, 2011]
- Infowars Special Report With Sheriff Richard Mack: Obama's Stealth Attack on The 2nd Amendment 2/4 [Last Updated On: October 12th, 2011] [Originally Added On: October 12th, 2011]
- Where does your candidate stand on the Second Amendment? - Video [Last Updated On: October 19th, 2011] [Originally Added On: October 19th, 2011]
- Second Amendment Activist Nikki Goeser and Author John Lott - Video [Last Updated On: October 24th, 2011] [Originally Added On: October 24th, 2011]
- Sen. Richard Burr on the Veterans Second Amendment Protection Act - Video [Last Updated On: November 6th, 2011] [Originally Added On: November 6th, 2011]
- Issa Stands Up for Second Amendment Rights on Real Time with Bill Maher - Video [Last Updated On: November 16th, 2011] [Originally Added On: November 16th, 2011]
- Just cause 2 Second Amendment Walkthrough - Video [Last Updated On: November 16th, 2011] [Originally Added On: November 16th, 2011]
- Kinzinger Supports Legislation to Promote Americans' Second Amendment Right - Video [Last Updated On: November 19th, 2011] [Originally Added On: November 19th, 2011]
- Second Amendment - Our Safety Our Duty - Video [Last Updated On: December 1st, 2011] [Originally Added On: December 1st, 2011]
- Second Amendment Rights at Occupy Phoenix 15-10-2011 - Video [Last Updated On: December 5th, 2011] [Originally Added On: December 5th, 2011]
- Lt. Col. Allen B. West speaks on Second Amendment - Video [Last Updated On: December 7th, 2011] [Originally Added On: December 7th, 2011]
- Michael Savage on the Second Amendment - Video [Last Updated On: December 17th, 2011] [Originally Added On: December 17th, 2011]
- Darrell Issa on Fast [Last Updated On: January 1st, 2012] [Originally Added On: January 1st, 2012]
- A Discussion on Being a Pro-Second-Amendment Social Liberal - Video [Last Updated On: January 2nd, 2012] [Originally Added On: January 2nd, 2012]
- Mr. Alan Gura on Current Second Amendment Litigation - Video [Last Updated On: January 7th, 2012] [Originally Added On: January 7th, 2012]
- Second Amendment; A Political Right; Historic Context; Not about Hunting! - Newt Gingrich - Video [Last Updated On: January 11th, 2012] [Originally Added On: January 11th, 2012]
- NEW JERSEY PAYS CASH TO TRASH SECOND AMENDMENT - Alex Jones Infowars Nightly News 2012-01-09 - Video [Last Updated On: January 12th, 2012] [Originally Added On: January 12th, 2012]
- Second Amendment fan says gun bills go too far [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- Tea Party hosts head of Gun Owners of California [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- Second Amendment Paranoia - Video [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- Second Amendment ~ "Wotan Rains On A Plutocrat Parade" (David E. Williams cover) - Video [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- What is the second amendment? - Video [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- Biggest Factor in Gun Rights, Congress, Not Courts [Last Updated On: February 6th, 2012] [Originally Added On: February 6th, 2012]
- Judge squelches bid to overturn Illinois gun law [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- A VIEW ON THE SECOND AMENDMENT - Video [Last Updated On: February 8th, 2012] [Originally Added On: February 8th, 2012]
- Dr. Suzanna Gratia Hupp on The Second Amendment - Video [Last Updated On: February 9th, 2012] [Originally Added On: February 9th, 2012]
- Second Amendment University - Video [Last Updated On: February 12th, 2012] [Originally Added On: February 12th, 2012]
- The politics of gunplay [Last Updated On: February 13th, 2012] [Originally Added On: February 13th, 2012]
- Gun advocates want ability to bring guns to work parking lots [Last Updated On: February 15th, 2012] [Originally Added On: February 15th, 2012]
- Breyer's Robbery Illustrates Why RKBA So Important Everywhere [Last Updated On: February 15th, 2012] [Originally Added On: February 15th, 2012]
- House committee adopts 2nd Amendment language [Last Updated On: February 15th, 2012] [Originally Added On: February 15th, 2012]
- Sneaky White House Budget Provisions Undermine the Second Amendment - Video [Last Updated On: February 19th, 2012] [Originally Added On: February 19th, 2012]
- Barack Obama, "Greatest Gun Salesman in America" [Last Updated On: February 22nd, 2012] [Originally Added On: February 22nd, 2012]
- Open carry advocates battle Upland [Last Updated On: February 23rd, 2012] [Originally Added On: February 23rd, 2012]
- Tenn. lawmakers debate parking lot gun bill [Last Updated On: February 24th, 2012] [Originally Added On: February 24th, 2012]
- SAF Condemns Texas Law Prof's Claim that OH School Shooting is 'Exercise of 2A' [Last Updated On: February 29th, 2012] [Originally Added On: February 29th, 2012]