The Twenty-Eighth Amendment: If You Could Draft It, What Would It Say?

I’m putting this in GD rather than IMHO because of its potentially political content and because I want to give posters the chance to contest the wisdom/language of amendments that are offered up.

Let’s say that two-thirds of the Senate and the House and three-quarters of the state legislatures call you up and ask you to conceive and draft the next amendment to the Constitution. How would you do it? What pressing societal problem or ambiguity in the legal or political landscape is most in need of solution by amendment? And how would you word that amendment to achieve just the right balance between elegance, concision, practicality, and necessary ambiguity?

If you don’t have one of your own, feel free to take issue with amendments that others propose. Here, for example, is my sacrificial offering. I would amend the Ninth Amendment as follows:

“The fact that some rights are listed in this document does not mean that there are not others that are also constitutionally protected. We do not presume to be able to provide a comprehensive list of these unenumerated rights, because the law is informed by morality, and morality is informed by society, and society is a living, breathing, changing thing. We are sure that there will be situations in the future that we cannot hope to imagine, in which it is crucially important that a previously unconsidered right becomes safeguarded by the judiciary. In fact, there exist unenumerated rights which right now deserve recognition and protection. But no, we are not telling you what they are.”

Okay, the Dave Barry-esque royal “we” might be a little glib. But the substance is there. Anyone else?

The founders were WAY ahead of you:

From the OP:

I’m aware, thanks. :slight_smile: The Ninth Amendment is, in many circles, viewed as a truism (see numerous GD threads on the topic)…or even, as a famously failed Supreme Court nominee would have it, as an uninterpretable inkblot on the Constitution. I seek to enshrine the notion of unenumerated rights into the Constitution in a way that would comport, to at least some degree, with strict constructionism.

There is a difference between saying that people have rights that are not explicitly enumerated in the Constitution (what the Ninth Amendment says) and saying that people have rights that, while not explicitly enumerated, are nonetheless protected by the Constitution–and that, furthermore, such rights may never be comprehensively categorized, as they evolve over time (what my amendment says).

“As the pursuit of happiness is materially obstructed by the bloating of national holidays in the name of commercial exploitation, no Christmas-holiday-oriented display shall be placed in any retail establishment prior to the weekend following Thanksgiving.”

The budget of the federal government shall be in balance every year.

The sixteenth article of amendment to the Constitution of the United States is hereby repealed. The federal government shall have no power to collect taxes on incomes. Any federal agencies, bureaus, or administrations involved in the collection of income taxes are hereby dismantled.

“Except during times of War, explicitly declared by Congress, federal expenditures for a given year shall not exceed 10% of the GDP of the previous year.”

(Note: The “explicitly declared by Congress” phrase is meant to disallow times where the war powers act is used.)

The amendment suggested by the OP amounts to this:

“The judiciary shall have the ability to create any “right” that it wants and toss out any duly enacted law it feels like, based solely on the personal views and preferences of the judges.”

There’s a lot to be said for “benevolent dictatorship” over democracy, but I’m not so sure I would endorse it as a practical matter. Personally I suspect that the OP and others who agree with him do so less out of abstract legal principles than out of a strong suspicion - based on recent history - that giving such enormous power to the courts will promote their particular agenda. But you never know. Perhaps if the courts showed an inclination to arbitrarily declare than everyone has a fundamental right to discriminate against anyone they want to, there would be equal enthusiasm from the same sources.

My preferred amendment would go in exactly the opposite direction. It would declare outright that the courts have no authority to interpret beyond the letter of the law, and no penumbras or any other form of emanations may be considered. None of this “we feel the legislature was trying to promote X, therefore the promotion of X has the force of law, which can override other laws which specifically deny X in certain circumstances”. And other such games.

But I can live with a balanced budget amendment too.

“Should the War Powers Act be invoked to commence armed hostilities against any nation, all expenditures to support said conflict shall be terminated within one week, unless Congress shall vote to declare war against that nation.”

I second what IzzyR said, right down to every jot and tittle.

From Dave Letterman:

“The President may use the Army and Navy to get back at the guy who beat him up in high school.”

Another “me, too” post for IzzyR. I confess, I hadn’t read all of the OP when I posted my first idea. I suspect that Gadarene and those who agree with him feel that such an amendment is a good idea because they perceive judges as being “on their side.” They look at recent history–judges upholding a “right” to abortion, striking down state anti-sodomy statutes, extending the proection of freedom of speech to lapdancing–and think “we should get the principle of judicial activism officially enshrined in the constitution, so that this kind of progress is guaranteed to continue.” But to anyone who thinks the OP’s amendment is a good idea: imagine that your worst enemies, those with whom you most vehemently disagree politically, were to gain control of the judciary and make use of the powers you’ve just granted them. Imagine the “rights” they would “discover,” and how those rights could be declared to trounce other rights you take for granted. Doesn’t it just make you shudder?

In light of this, I feel that rather than revoking the federal income tax, a higher priority for me would be to get something like this into the Constitution:

"The word ‘right’ as used in this Constitution shall be construed to refer exclusively to what are sometimes called ‘negative rights,’ which are powers and privileges every human being is born with, and posesses automatically unless they are actively abridged or curtailed by some external force. Examples of these ‘negative rights’ are life, liberty, the pursuit of happiness, freedom of speech, freedom of association, and freedom of religion.

The word ‘right’ as used in this Constitution shall NOT be construed to refer to what are sometimes called ‘positive rights,’ which are entitlements a person is not born with and would never posess at all unless they were explicitly given to him by some external force. Examples of these ‘positive rights,’ which are NOT protected, granted, or guaranteed by this Constitution, are education, medical care, gainful employment, access to abortion, freedom FROM religion, and a government-sponsored platform for one’s speech."

No person shall be subject to discrimination by any public or private party on account of race, religion, color, national origin, gender, age, disability, appearance, political beliefs, or sexual orientation.

I would amend the Constitution in the following respects (I won’t try to draft the exact legalese wording):

  1. The Electoral College should be abolished. The president should be elected in a national vote, conducted by instant-runoff voting or IRV (where the voter gets to rank-order the candidates by preference instead of picking just one).

  2. The Senate should be abolished, all its functions and powers devolved on the House of Representatives. Alternatively, the Senate should be elected by the national-party-list form of proportional representation.

  3. The House of Representatives should be elected by the multi-member-district form of proportional representation, even if this means some districts would cut across state lines.

These and related reforms have been discussed in the following GD threads:

“Why don’t people just effing vote the way they want?”

“Should the U.S. adopt alternative, pro-multipartisan voting systems?”

“What would a multipartisan America be like?”

“Should the United States Senate be abolished?”

  1. The following section of the Constitution should be repealed:

Congress should have the constitutional authority to re-draw the state lines at will – abolish existing states, create new ones from their territory. This would make it possible to build a more rational state system in which the very largest metropolitan areas – New York City, Chicago, Los Angeles, and any urban area as large as or larger than the Washington, D.C. metro area – could be politically unified under governments with all the constitutional powers and functions of state governments. This was discussed somewhat in the GD thread, “DC Voting – Will It Ever Happen?” –

“The American people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”

It’s article 9 of the Japan’s postwar constitution, as approved by Gen. Douglas McArthur. Once sentence removed, “Japanese” replaced by “American”. Works for them so far… :slight_smile:

Gadarene, I think it would be simpler and more effective if your amendment simply listed explicitly the rights to be protected. This would remove any ambiguity or argument.

That would be great! I’ve always wished that I had been in the Boy Scouts, but as a 42 year old atheist, I guess I figured my chances of getting in now are pretty slim. But with this amendment, I could use the power of the Constitution to force them to let me in!

And I could sue GQ magazine if they refused to make me their cover model, with some flimsy excuse that I’m not hunky enough.

“A well regulated militia, being necessary to the security of a free state, and given the fact that we now have an Army, Marine Corps, Navy, and Air Force to more than adequately provide that security, the right of the people to keep and bear arms, shall have some measure of common sense applied to it.” :smiley:

And I didn’t think the world was ready to see me in a Playboy Centerfold spread, but maybe I was wrong!:slight_smile:

The Beastie Boys’ Amendment:

“The right of the people to party will not be infringed.”

On a serious note, I’m all in favor of the one put forth by BobLibDem.