All US Constitutional Amendments are wiped out, which come back and which are gone forever?

Great Debates
1

A magical force comes up through the ground and disappears all amendments to the United States constitution. Including the bill of rights.

Federal and state governments scramble together to get ready to re-pass them, re-word them, or whatever.

So which amendments would be passed virtually untouched and unanimously, and which (if any) would be DOA or heavily modified before being re-ratified?

I think that most amendments are going to get through just fine (except for the one that prohibited sale and transport of alcohol and of course the one that repealed it).

I say that the 2nd amendment gets passed but with new, heavily modified language. I think the 1st amendment more or less gets passed without much change. The 10th amendment is kind of useless. Does it even need to be in the constitution?

So, what do you all think?

2

I’d expect the 1st Amendment to be very controversial. There’s a sizable contingent that would do away with the establishment clause entirely, and restrict the free exercise clause to apply only to their particular flavor of religion. They support free speech, unless they happen to find “Fuck the draft” or flag burning to be offensive. Etc.

3

I’m all in favor of the 2nd amendment being completely rewritten so that it works the same way it does now, and it just makes sense to the average joe.

4

Safe to say the 18th & 21st amendments won’t be needed.

5

The 16th Amendment might face some opposition as well. Tea party and tax protestor types probably are not big fans of it.

6

They don’t like the 17th Amendment either.

The Ninth and Tenth Amendments are also going to get neutered.

7

The 14th might get “cleaned up” to avoid accusations of “Anchor babies”.

8

The only one of the Bill of Rights that would remain is the third:

Every other one is too controversial to obtain the needed supermajority in the current hyper-partisan environment. While three quarters of the states could easily agree we need particular amendments, no one wording could get such agreement.

Beyond the Bill of Rights, I think we could at least get agreement on the 13th (ending slavery). Income tax? Iffy.

It was a lot easier for the framers because of uncertainty over whether there would be actual enforcement. Also, they were seen as restrictions on the federal government at a time when state governments were more important. And through much of the 20th century, there was a less partisan atmosphere in which there was more cooperation between the parties. (The negative on that was the common observation that there was no difference between the two parties.)

The UK has a mostly unwritten constitution, and is still a free country. Just sayin’

9

You have a problem with quartering soldiers in your home? Don’t you support the troops?

10

A lot depends on what you think they would do in regards to legal precedent on the issue - for example, the 4th Amendment on it’s own is pretty vague (“no unreasonable searches and seizures”) but there’s a ton of caselaw describing what is reasonable and what is unreasonable. Does that stay alive if the amendment is passed with the same text, or do you think the legislature would attempt to incorporate some of the well-decided caselaw into the text of the amendment?

1st Amendment (freedom of speech, press, religion, assembly): gets passed easily, with the exception of the freedom of religion clause, which may end up being heavily modified

2nd Amendment (right to bear arms): everyone’s for passing it, but extremely contentious debate over the language.

3rd Amendment (quartering of soldiers): passed easily, unless it’s thought to not even be necessary

4th Amendment (unreasonable search and seizure): passed easily, though possibly with more extensive language.

5th Amendment (right to grand jury, double jeopardy, self-incrimination, eminent domain, due process): passed easily, though I would expect stronger language for eminent domain to undo Kelo

6th Amendment (right to speedy trial, trial by jury, confrontation rights, right to attorney): passed easily

7th Amendment (trial by jury in civil cases): passed easily, though I can also see it being folded into the 6th Amendment

8th Amendment (excessive fines/bail, cruel and unusual punishment): passed easily

9th Amendment (enumerated rights don’t disparage other rights): doubtful this one makes it back in, mainly because of vagueness and that it would seem to work better as a rule of judicial interpretation rather than a right or law.

10th Amendment (rights not delegated to feds are reserved for states): probably ignored, as it’s either treated as a truism or just ignored. There’s also the possibility it gets completely re-written as a limit on the Commerce Clause, depending on how the legislature swings.

11th Amendment (states cannot be sued by citizens of other states): part of me wants to say it wouldn’t make it back in, but I wouldn’t be surprised if the legislature decided to give the states protection again. (I admit I’ve never understood the reasoning behind this amendment)

12th Amendment (electors vote for Pres and VP, not two votes for President): assuming it’s needed under this hypothetical, it still passes. Would be interesting to see if changes were made to the electoral college, though.

13th Amendment (abolishes slavery): passes easily

14th Amendment (citizenship, due process, equal protection, priviliges or immunities clause): would definitely pass, but probably with a lot of editing, especially that pesky priviliges and immunities clause.

15th Amendment (right to vote): passes easily, though maybe with slightly more general language

16th Amendment (income tax): probably passes, though I can certainly see the Tea Party making a strong push to not pass it or at least heavily neuter it.

17th Amendment (senators by popular vote): like the 12th, passes easily if deemed needed

18th Amendment (prohibition): nope

19th Amendment (right of women to vote): passes easily, though might be folded into the 15th

20th Amendment (timing for begin/end of terms): passes easily

21th Amendment (repealing prohibition): nope

22nd Amendment (presidential term limits): probably passes easily, though I can see some people arguing we don’t need it

23rd Amendment (DC gets electors): passes easily

24th Amendment (right to vote not conditioned on poll taxes): probably unneccessary since poll taxes later ruled unconstitutional under the 14th

25th Amendment (succession): passes easily

26th Amendment (18 year olds can vote): passes easily, or is folded into the 15th/19th Amendments

27th Amendment (congressional pay raises): passes easily

11

Shoo-ins without any modification:
13, 15, 17, 19, 24, 26. The 17th Amendment certainly has loud detractors, but I’m not convinced their position is actually popular in any way.

Probably 3 and 9, too. They feel good and that’s pretty much all they’ve ever done, so there isn’t really any argument against them.

Procedural amendments that nobody really cares about:
11, 20, 25. These could very easily stay intact, but they might be changed for some technocratic reason that nobody will care about.

Will remain largely intact, but might get changed a little:
1, 2, 4, 5, 6, 7, 8, 16. All of these ideas are broadly popular, but the specifics often piss people off, and I could see some passing outrage like flag burning or eminent domain causing an alteration. A partial repeal of the First Amendment came within a single vote of escaping Congress just a few years ago.
14. Enough people believe in the “anchor baby” myth that I could see that part changing.
22. Maybe Bill Clinton would get his wish and they’d allow more presidential terms after a break.
23. DC would definitely retain its electoral votes, but I don’t think a modification allowing for a voting member of the House would be such a poison pill that it would be rejected.
27. I could see it being altered to only prohibit pay raises.

In danger:
12. The electoral college is pretty unpopular, but possibly not enough for an outright repeal. I could even see us accidentally going back to the original method for a cycle or two, while competing amendments make the rounds.
18. No sense in re-passing something that was fully repealed.
21. The main thing it did was repeal an amendment that there’s no sense in bringing back. It also granted states extra powers to ban alcohol, but does anybody really care in 2013?

I’m not sure where I’d put the 10th Amendment.

12

Just curious, but what law would that be?

13

A flag desecration amendment got 66 votes in the Senate in 2006. (I’ve seen suggestions that the real number was more like 56, with around 10 senators only voting for it because it would fail, but I don’t know how true that is.)

14

True blue states would insist on the phrase “separation of state and church.” And the red states would go bat you-know-what unless we were declared a Christian nation. Or maybe they would compromise on Judeo-Christian, or even just a statement that freedom of religion didn’t extend to atheists.

Liberals are the ones who care the most about the first amendment. What would you rather have? A first amendment making clear freedom of religion doesn’t mean freedom of of irreligion? Or no first amendment at all? I think you’re gonna want the latter, and would get it.

Read today’s paper. The lesson of the sequester is: If there doesn’t really have to be a compromise, there won’t be.

15

I could see any of these getting neutered, simply because some people (the people the Bill of Rights is meant to protect you from) don’t want people to have these rights. A government responsible for free speech zones, assault weapon bans, warrantless wiretaps or indefinite detention or execution without trial is not a government that that respects these rights.

16

The Bill of Rights was meant to obtain ratification of the Constitution by North Carolina and Rhode Island.

Beyond that, the Bill of Rights is meant to protect the states from the federal government. So, for example, the federal government was forbidden from passing laws respecting an establishment of religion, such as those then existing in Connecticut and Massachusetts – just as it was, of course, also forbidden from imposting Connecticut’s established church on Rhode Island.

I’ll take our government today over those eighteenth century violent revolutionaries, half of 'em slaveholders, any day of the week.

17

Thanks, didn’t know Mitch McConnell was a great maverick on that issue.

18

In addition to this, I’d expect a lot of attempts by copyright holders and content production corporations, such as the RIAA and the MPAA, to limit “fair use” out of existence. This would include things like limiting reviews of published creative works and restricting satirical or parody works. I don’t know if they’d succeed, but they’d damn well try their hardest. It would just be the big guys either - local businesses and restaurants often complain about negative reviews as well.

19

You guys are a lot more optimistic than I am.

The Bill of Rights was written by idealistic men trying to create something unique in history. Our current politicians are not so high minded, quite the opposite. They’re interested in their own power above all else. The spirit of those protections of rights may still run through the American public, but there’s no way that our current set of politicians would be so idealistic. We live in a country in which our rights are being actively violated regularly by the government, and those violatons are expanding. The drug war and other police powers shit all over the fourth and other amendments. We can’t even agree anymore that it’s bad if the US President can assassinate US citizens without oversight, and you think we’re going to sign up for these high minded ideals meant to limit government power?

If they were re-enacted, it would only to give them lip service only to keep shitting on them anyway.

  1. Maybe the freedom of speech provisions would remain, but the anti-theocratic stuff would be far too controversial. Theocrats are much too militant and numerous. Maybe some language giving government much more control over the issue, “free speech zones” and such.

  2. If it passed at all, it would be some bullshit protection of sportsmen or other such nonsense which completely contradicted the intent of the original second amendment.

  3. Could probably pass unaltered, I don’t see it as being a big deal either way.

  4. No way. This one gets as shredded as any other. The drug war and eternal war against terror are major drivers of government, and they’ve repeatedly and increasingly shat on our 4th amendment protections. This would be one of the first ones to go. If it were re-added, it would be in a much more limited context.

  5. This would probably stay, except that eminent domain would probably be explicitly expanded, in particular in a pro-corporate sort of way.

  6. This would be modified so that, oh, sure, most people get a speedy and public trial, but in the case of national security we can torture and imprison and rape anyone we want without any public knowledge or oversight.

  7. Yeah, sure.

  8. Yeah that’d probably be fine.

  9. Irrelevant, and probably not included. We haven’t actually followed the intent of the constitution, that it’s main purpose is a document enumerating and limiting federal power, in a very long time. There’s no point in including this now.

  10. Basically same as 9.

  11. Keeper, benefits the government.

  12. Procedural. Might be altered, might not, no big deal.

  13. Keeper.

  14. I suspect this one would see some alterations, particularly in regards to being able to declare people not to be citizens based on suspected ties to national security issues, due process would be stripped again to facilitate injustice in the case of anything that can be labelled national security.

  15. Keeper

  16. Keeper. There’d be a weird conflict on this one. The tea partyish and pro corporate factions of congress might fight it, but at the same time it would be such a drastic step to de-fund government that it would eat away at their own power. I’m not sure how that would be resolved. Maybe a constitutionally enforced flat tax or something.

  17. Keeper. I don’t think it’s good or useful, but the current people in power are in power because they know how to work the current system, so they’ll vote to maintain that.

  18. Unnecesary/moot.

  19. Keeper

  20. Procedural

  21. Unnecesary/moot

  22. Not sure on this one. Certainly they wouldn’t re-add it out of some sort of duty to the public. It would probably be a political calculaton based on who thought they’d next benefit from having many termed presidents.

  23. Keeper

  24. Probably a keeper

  25. Procedural

  26. Given how partisan the young vote tends to be, I could see a significant enough minority trying to block it from being re-added.

  27. Token gesture really, so they may re-add it. Congressional pay really isn’t a big factor for them.

20

The 14th Amendment would be rewritten to state that all people previously held in slavery are automatically granted citizenship, and that henceforth, any person born anywhere in the world is a U. S. citizen as long as at least one parent is a citizen by birth or naturalization.

The 16th Amendment would be rewritten to pass the Fair Tax instead of the income tax.

The 17th Amendment would be rewritten to mandate a balanced budget from the Congress every year.

The 22nd Amendment would be rewritten to include term limitations on the Congress: no more than 12 years served in Congress, regardless of the division.

The 27th Amendment would be rewritten to require that Congressional pay raises must be approved by a national vote to be held in conjunction with the Presidential election.