I agree that your amendment is one that should be looked at. Section one seems like it should have been in place a long time ago. section 2 on the other hand seems to violate all of the beliefs that this country was founded on, that ALL men are created equal. To say that just because you are not a US citizen means that we dont have to treat you with the same rights as one just doesnt make any sense at all.

IMIGRATION INTEGRITY AMMENDMENT:

Section 1: A person born within the borders of the United States of America or its territories that does not have, at the time of birth of that person, at least one parent that is an American citizen or entitled to be an American citizen is not entitled to citizenship of the United States.

Section 2: Persons residing within the borders of the United States of America that do not hold citizenship of the same, will not be guaranteed nor automatically receive the same rights attributed to legal and current citizens.

I didn’t punt: I said I don’t think courts would declare an amendment invalid and so the burden falls on the other participants in the process. I take seriously the notion that all members of government (who, after all, swear an oath) have a responsibility to uphold the Constitution and respect its limits on their behavior.

Beyond that, if you’re interested in the details of the argument, I refer you to my article.

JM

Since you’ve punted the question of whether a court could declare an amendment invalid, I’m still not clear on what you mean when you say that you “you *can’t* amend the Constitution to make or to allow states to make any group of people unequal to others.” What’s stopping someone from doing that, other than your theory?

And if it’s just your theory, it seems built on a series of highly contestable assertions. It’s giving the 14th Amendment an awfully broad reading to suggest that it even means that Congress can’t pass legislation that makes *any* group unequal to others. I doubt you mean that we couldn’t amend the constitution to make felons unequal to others, or people who live in ZIP codes that end in even numbers. If you do, then you’re expecting of your students something much more than the Supreme Court has ever embraced.

And that doesn’t even address the question of whether the Civil War and Reconstruction amendments somehow amended the meaning of Article V such that it limits the ability to amend the constitution further.

In the end, I guess I think that this question, and in particular your analysis of the student’s answer, was really a question about your constitutional philosophy and not so much about Con Law.

By the way, I’ve only glanced at the abstract, but I shall definitely be reading your paper. I’ve often mulled the idea that amendments should be radically out of step with the existing constitutional scheme, and although I’d never dream of elevating that to a constitutional principle, this seems a potentially very interesting paper.

Thankyou.

As I see it, the original design of the United States was in equal parts federal and national: the original impetus for having the Senate was that the States would be represented equally in at least one house of the Congress. Thus, in the original design of the Federal system, the states had a major bulwark against laws that encroached on their prerogatives, and there was thus one branch of the Federal government whose natural tendancy would be to check rather than to expand the scope of the Federal government. (One might suggest that this is one reason why questions of Federal incursion on state prerogatives are primarily a feature of post-17th Am. jurisprudence).

The Seventeenth Amendment sacrificed that design on the altar of fixing several problems, chief among them being the problem of corruption in state legislature and vacancies in Senate representation arising from flaws in the original selection process (there’s an excellent account of this in Julian Zelizer’s book The American Congress: The Building of Democracy and Todd Zywicki’s paper Beyond the Shell & Husk of History, 45 Clev. St. L. Rev. 165, is also hugely important); I don’t mean to suggest that those problems were not real (which is why, instead of simply repealing the 17th amendment, I provide an alternative), but I do mean to suggest that the cure was worse than the sickness. Between a Court that (arguably properly, arguably not) has tended to defer to Congress over questions of whether something is in its power, and a Senate now composed of members who have every incentive not to resist the expansion of federal power, the conjoining of the 16th and 17th Amendments have seen an expansion of Federal power at the expense of the states that would have been simply unimaginable in 1788; indeed, the 17th Amendment proves that the Antifederalists were wrong: their fears couldn’t be realized within the original design. It took an amendment to do that.

For me, the final straw was the Roberts and Alito hearings. There is, in my view, plainly a mismatch between the fundamental purpose for which the Senate exists in its executive capacities, and the position of being directly elected. My best argument, then, for getting rid of direct election, are the present members of the Senate. If Jeff Sessions and Chuck Schumer are the best we can do, direct election is a failed experiment.

I’d also add that both directly and indirectly, direct election of Senators has robbed not only states in general, but state legislatures in particular. This is an aspect of my argument which is undertheorized, but I mention it in passing.

I realize that it seems counterintuitive to argue for less democracy in America, but FWIW, I would suggest that the same applies to electing judges: I understand the impetus to do so, and prima facie, that rationale is tempting, but I think it’s a huge mistake. Nor am I sure that there aren’t some predictable adverse consequences of this amendment; many of the problems that the Seventeenth Amendment was designed to remedy might come back. But I would suggest that, even if those problems were not fixable (which, IMO, they are), it is a risk worth taing to restore the proper function of the Senate in bringing the federal system back into some kind of balance.

Three responses:

(1) In the article I referred you to I don’t make the claim (and I should have been more clear in discussing 43’s proposal) that no valid amendment may reduce rights. Indeed, I discuss in the article in some detail how many rights limiting amendments could be entirely proper. The substantive limit I suggest that must be understood as part of Article V post-Reconstruction is that you can’t amend the Constitution to make or to allow states to make any group of people unequal to others. The article deals with the marriage amendment (or rather the Musgrave version) among others from this perspective.

(2) Whether courts should strike down an invalid amendment is a separate question. In the article I say it’s unlikely they would and therefore the burden must fall on all of the participants in the amendment process to be careful a proposed change is really a proper amendment.

(3) Nothing ironic about it if you understand the term “amendment,” as it should be understood, to mean a limited change–and can think about what those limits are in light of the overall Constitution and its history. That’s the kind of thing we expect constitutional lawyers to do all the time.

I haven’t read the paper, but I wonder whether you’re suggesting that there might be some basis on which a court could reject a purported amendment to the constitution, done through Article V procedures, on the ground that it was not a legitimate amendment because it restricted rather than expanded rights. It obviously puts a whole lot of weight on the definition of what’s a “right” and who the holder of the right is (since the 11th Amendment arguably limits rights of individuals to sue to protect state rights).

Do you think that the 16th and 18th Amendments (the income tax, arguably limiting one’s right to use his own property, and prohibition, arguably limiting one’s autonomy) were illegitimate? If so, is that just a matter of political theory, or are you suggesting that a court could declare them invalid?

In either case, it is rather ironic, given the amount of specificity that you call for in your exam amendments, that nowhere in the Constitution is there such detail about the limitations on amendments that you suggest.

Mark

Clear, crisp, and consistent with your stated goals. (Though I’d like to hear more about the thinking behind state legislative appointment of senators.) An A for you.

JM

Can I play? I have a draft 28th Amendment that I frequently wheel out at times like this. It is an omnibus amendment designed to effect three changes: first, the imposition of term limits on Congress, second, to prohibit Presidents from succeding themselves, and third, pursuant to my view that the changes wrought by the 17th amendment destabalized the Federal system, a drastic change in the method of selecting Senators. As you might imagine for someone who disdains legislative history, the text is (I hope) self-explanatory, although I’d be happy to add additional notes on purpose, intent and problems here.

“Is there some organizing principle to the amendments to which every amendment must adhere? Must all constitutional provisions grant, rather than abrogate, rights?”

Yes to both questions. I set out the argument in “Unamendments,” 90 Iowa Law Review 1747 (2005), available at: http://ssrn.com/abstract=803864

I don’t understand the basis on which you are evaluating these amendments at all, other than your feelings about the amendments.

Is there some organizing principle to the amendments to which every amendment must adhere? Must all constitutional provisions grant, rather than abrogate, rights? Says who?

All of your criticisms could be leveled against any number of consitutional provisions, particularly your concerns about ambiguity of particular terms. Constitutional amendments are politics writ large, some of them more coherent than others. But does the fact that the 9th Amendment is incredibly vague make it any less of a legitimate amendment?

Or maybe I have too strong a sense of political realism: if something is adopted, doesn’t that basically put it “in place”?

But then I’m from a crazy little state that is about to have a constitutional amendment on the ballot to allow Harrah’s to operate a casino for the Narragansett Indians. I kid you not.

I think it’s a terrible idea; but whether it’s “out of place,” I don’t know. As one state senator famously said last week, “It’s not like the Constitution is the Ten Commandments.”

Greetings from Rhode Island.

Hey! Stop making fun of Robbie George! I know it’s easy, but if you’re going to do it you might as well at least use his name.