What would you want to become the 28th Amendment?

At Concurring Opinions, Professor Zimmer lists 10 Amendments his 2005 constitution law students students would propose as the the 28th Amendment. They are:

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.

Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.

The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.

Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.

6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.

5. A tie:

Make explicit a constitutional right to privacy.

Prohibit the death penalty.

3. Guarantee universal health care. This may just show how long this issue has been on the agenda.

2. Presidential election by direct vote. Bush v. Gore still had impact five years later.

1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions.

What would my 28th Amendment be? Better question, what would my 28th-37th amendments look like? See Randy Barnett’s Bill of Federalism, or the Wikipedia page.

  1. Disallow federal income taxes (i.e., repeal Sixteenth Amendment), as well as gift, estate, and consumption taxes; allow FairTax; require a 3/5 supermajority to raise or set new taxes
  2. Set limits on the Interstate Commerce Clause
  3. Disallow unfunded mandates, and conditions on funding.
  4. Close a constitutional loophole that allows treaties to override established limits on power
  5. Extend free speech consideration to campaign contributions, and to cover any medium of communication (including the Internet)
  6. Allow a resolution of three quarters of the states to rescind any federal law or regulation.
  7. Establish Term Limits for Senators and Representatives.
  8. Provide the President with a line-item veto to balance the budget on any year in which it is unbalanced.
  9. Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
  10. Restrict judicial activism by mandating an originalist method of interpretation.



6 Responses to “What would you want to become the 28th Amendment?”

  1. AA Says:

    Why not repeal 17?

  2. troll_dc2 Says:

    I am fascinated by this one: “Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.”

    What addtitional rights should be recognized? What sort of process would be useful? What, if any, restrictions would be placed on the Supreme Court in recognizing specific additional rights?

    The Court has been extremely reluctant to read anything into the Ninth Amendment. Why do you think that it has shied away from doing so? Is this history significant?

    • Josh Blackman Says:

      While the Court has been reluctant to read anything to the Ninth Amendment, at various points in the 20th Century, they have read quite a lot into the due process clause of the Fourteenth Amendment. If limitations can be placed on substantive due process jurisprudence, I’m sure the Justices could fashion something for the 9th. But, the 9th Amendment today is largely a dead letter.

  3. troll_dc2 Says:

    Just out of curiosity, do you believe that the Court should ever take any provision of the Constitution and read more into it than its writers ever presumed? If not, are you not saying that the answer to every claim that is not based on specific text is “denied”?

    • Josh Blackman Says:

      I think you first have to figure out whether the words on a page mean more than the plain text, irrespective of a Judge “reading” anything into it. Phrases such as due process, or privileges or immunities, are not random words defined in a vaccum. There are centuries of common law history behind them to provide meaning.

  4. troll_dc2 Says:

    How do you figure that out? Do you accept the concept of substantive due process? If so, how do you decide what fits and what does not?

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