Sixteen Good, Bad, and Insane Ideas for a Twenty-Eighth...

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CYCLORAMA AUGUST 22, 2013

Sixteen Good, Bad, and Insane Ideas for a Twenty-Eighth Amendment to the Constitution

America’s longest drought between constitutional amendments since the Civil War was from 1870 to 1913. In that time, there were two presidential assassinations and several financial panics; the light bulb, telephone, movie theater, radio, and airplane were invented; the Supreme Court legalized segregation; fire destroyed Chicago and an earthquake flattened San Francisco; and the United States added eleven new states. Despite the frenzy, the Constitution went untouched.


The most recent amendment—the Twenty-Seventh in 1992, which prohibits changes to congressional salaries from taking effect until the next term—was an unfinished James Madison plan unearthed by University of Texas student Gregory Watson, who earned a C for finding it. The amendment before that, the Twenty-Sixth, was the last to add an original idea to the Constitution. It lowered the voting age to 18 and passed in 1971.


Measuring from the Twenty-Sixth, the country is about to tie that long drought between amendments. Even counting from the Twenty-Seventh, for the first time since 1913 (when Congress passed two amendments), it will soon be possible for someone to enter law school having lived his or her entire life under a static Constitution.


Which isn’t to say Washington hasn’t tried. Most ideas for new amendments fall into one of two categories: either political amendments, which seek to settle hot-button issues like gay marriage and abortion; or procedural amendments, which seek to change how we practice politics in the United States. None has passed muster, failing either in Congress or the state legislatures, if it made it that far at all.


We got law professors to weigh in on the various proposals over the years. Here’s a look at amendments that might have been, still could be, and never stood a chance of becoming the Twenty-Eighth Amendment.

Political

The Equal Rights Amendment
Passed Congress in 1972; fell three states short of ratification by 1982 deadline
This famous effort to enshrine women’s equal rights in the Constitution failed in 1982, but since 1976, the Supreme Court has said the Fourteenth Amendment bans gender discrimination except where there is an important government purpose. “What would it accomplish?” asks NYU’s Barry Friedman, who adds it could be rebooted as a gay-equality amendment.
The Adam & Eve Amendment
Defeated in the Senate in 2004 and 2006; reintroduced unsuccessfully in 2008 and 2013
An amendment to restrict marriage to heterosexual couples never made it to state legislatures in 2006. Since then, twelve states and the District of Columbia have legalized gay marriage; twelve states have banned it. Public opinion has shifted strongly in favor of gay rights, making a successful revival unlikely.
The Balanced-Budget Amendment
Passed by the House in 1995; defeated in the Senate
Forty-five states have already amended their constitutions to require legislatures to balance their budgets, but Washington has held out. If he had to bet on the Twenty-Eighth Amendment, Georgetown Law’s Louis Michael Seidman’s money is on this one. In 2011, Warren Buffett suggested a legislative alternative: “You just pass a law that says that, anytime there is a deficit of more than 3 percent of GDP, all sitting members of Congress are ineligible for reelection.”
The Personhood Amendment
Introduced in hundreds of slightly differing forms since 1973
This year, the North Dakota state legislature passed an amendment granting full personhood rights to human embryos—and anti-abortion activists hope the nation will one day, too. Pro-choice advocates, meanwhile, have already devised a clever rebuttal: Personhood would extend citizenship to anyone conceived in the United States, not merely born here.
The Non-Personhood Amendment
Introduced in 2011; since Abandoned
While conservatives attempted to write fetal personhood into the Constitution, Senator Bernie Sanders, the socialist from Vermont, tried to erase corporate personhood from it. His amendment declared, once and for all, that corporations aren’t people—and therefore lack free-speech protections. With that settled, Sanders’s amendment would have then outlawed all corporate campaign contributions.
The Star-Spangled Amendment
Passed by the House every congressional term from 1995 until 2005; always stalled in the Senate
It reads in full: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” It’s popular in Republican Congresses, but even some conservatives chafe: “It becomes much harder to defend displays of the Confederate flag as free expression if you have an amendment banning flag-burning,” says Eugene Volokh, a law professor at UCLA.
The This-Is-How-Much-We-Hate-Obamacare Amendment
Subcommittee purgatory
After the House’s 37 failed attempts to rescind Obamacare, Senator Marco Rubio, the Florida Republican with White House ambitions, proposed an amendment that “Congress shall make no law that imposes a tax on a failure to purchase goods or services.” Representative Steven Palazzo, a Mississippi Republican, introduced a similar proposal in the House. Look for this to gain some fans as Obamacare rolls into effect in 2014.
The Campaign-Finance Amendment
Proposed in the House in 2012
Less radical than Bernie Sanders’s proposal, this amendment would empower Congress and the states to publicly fund elections and limit private campaign contributions. Representative Adam Schiff, a California Democrat, introduced it last year, with Harvard Law Professor Laurence Tribe’s assistance. The proposal came as the 2012 presidential race saw $524 million in spending from independent groups.

Procedural

The Schwarzenegger Amendment
Introduced in Congress more than two dozen times since 1870, most recently in 2003 by Orrin Hatch; never passed
Believe it or not, the Founders actually allowed foreign-born Americans to become president—as long as they had been naturalized by 1787. That was too early for Arnold Schwarzenegger, who at the height of his popularity as California’s governor sparked hopes for an amendment to allow immigrants into the highest offices.
The Gore Amendment
Unintroduced
“I had thought an election where the presidency goes to the loser of the popular vote would trigger an amendment abolishing or restructuring the electoral college, but I was wrong,” says Yale Law School’s Akhil Reed Amar. He has proposed a clever, non-constitutional initiative where state legislatures bind their electors to the national popular vote.
The Armageddon Amendment
Introduced 2001; since ABANDONED
After 9/11, Representative Brian Baird, a Washington Democrat, proposed a constitutional amendment spelling out the response to a disaster that wipes out huge swaths of Congress or the Cabinet. It never gathered much steam, even as intelligence officials bemoaned the Beltway’s lack of imagination in the war on terror. “People don’t like to write their own obituaries,” says Alex Kozinski, chief judge of the Ninth Circuit’s Court of Appeals.
The D.C.-Statehood Amendment
Passed Congress in 1978; ratified by only 16 states by 1985 deadline
Local license plates bemoaning “TAXATION WITHOUT REPRESENTATION” have done little to change things in Washington, D.C.: The District’s status is explicitly laid out in the Constitution, and Washingtonians will need to amend it if they want full representation. One recent piece of legislation decreed the District “shall be treated as though it were a state,” but Republicans balked: They are not about to add more Democrats to Congress.
The No-More-Term-Limits Amendment
Last introduced in the House in January 2013
It took the Great Depression in conjunction with World War II to enable FDR’s epic, four-term presidency—and the Twenty-Second Amendment was passed to ensure no one would repeat the performance. But Congress might be persuaded to pass a new amendment to repeal the two-term limit if, say, a charismatic president were in office during a confluence of catastrophes. It’s exactly what the 2008 financial crisis did to the mayorship of New York.
The Congressional-Collar Amendment
Subcommittee purgatory
This year alone, at least eight representatives and two senators (including Rand Paul, the Kentucky Republican and White House hopeful) have proposed amendments to impose congressional term limits. Such a move would forever protect the record of Representative John Dingell, the Michigan Democrat with the longest-ever stint in Congress. He shouldn’t count on it, though: His colleagues are unlikely to cut short their own careers.
The Voters’ Amendment
Subcommittee purgatory
In May, Representative Jim Cooper, a Tennessee Democrat, proposed a simple amendment: “The right of adult citizens of the United States to vote shall not be denied or abridged by the United States or any State.” It was sparked by a rash of voter-ID controversies (mostly in Southern states) and exacerbated this summer when the Supreme Court gutted the historic Voting Rights Act of 1965.
The To-Hell-With-Amendments Amendment
Unintroduced
“There is such ridiculous veneration attached to the U.S. Constitution,” says University of Texas Law Professor Sanford Levinson, “that almost nobody takes amendment as a serious possibility.” He advocates a new constitutional convention—but Yale’s Amar says you wouldn’t even need a convention for an overhaul: “You could just have an amendment that says, ‘The foregoing is repealed in favor of the following,’ and then write a whole new Constitution.”

Arnold schwarzenegger: getty images; adam schiff: roll call/getty images; fdr: getty images; d.c. plate: lonely planet; rand paul: getty images; marco rubio: filmmagic; atomic bomb: mark evans; al gore: nbcu photobank via getty images; fetus: sciepro; constitution: ralf hettler; capitol building: atanas bezov; justice scale: dny59; american flag: sandra nicol; bernie sanders: getty images; warren buffett: wireimage; pen quill: studio casper; fists: laflor

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