Drafting the 28th Amendment
posted by Michael Zimmer
With only 27 amendments so far in our long history with our present Constitution, a colleague and I asked all of our Constitutional Law students in the fall of 2005 to propose a 28th Amendment. This was to celebrate Constitution Day, so we opened the exercise to everyone in the law school community. There was a range of responses across different areas of Constitutional law, including several structural proposals and the expansion of negative as well as of positive individual rights. Starting at number 10 and moving to number 1, here are the top 10 proposals:
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.
That the protection of same-sex personal relationships was first was a surprise at the time. But, this was not that long after the 2004 Election, when that issue was very prominent, with some thought that it turned the Presidential election because of anti-same-sex marriage proposals on the ballots in states like Ohio. With the passage of time and some real movement on the issue at the state law level, it would be interesting to know whether students today would still propose this amendment or whether some other issue might have captured their interest.
There were a range of other suggestions outside the top 10, including two to overturn Roe v. Wade and several individual ones attempting to bolster Congressional power vis-à-vis the Executive or to limit Presidential power. Several seem quixotic. For example, one would prohibit everyone under age 30 from working over 40 hours per week, another would raise the voting age to 21 but reduce the drinking age to 18. This suggests that some of these students might have at least thought about contributing to President Obama’s electronic suggestion box where by far the most popular proposal was to legalize marijuana. But no one was quite bold enough to suggest that as an amendment. I wonder if the medical marijuana question might have greater salience this year.
Looking at the distribution of all of the proposals, it seems that law students prefer to think about constitutional law more in terms of individual rights – most would expand those rights – than the structural issues that in many ways have predominated before the Court and among academics recently.
What do you think your students would propose? I may ask my Constitutional Law students to do this again this coming semester. Maybe we should set up a national survey of law students to find out what they regard as the most pressing areas of need for amendment of our Constitution.
November 2, 2009 at 10:22 am
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Responses (10)
Howard Wasserman - November 2, 2009 at 10:36 am
Channeling Sandy Levinson, who would say this is precisely what is wrong with our constitutional thinking–only one proposal goes to the hard-wired structure, which is what Constitutions are supposed to be about.
Bill - November 2, 2009 at 12:37 pm
“Maybe we should set up a national survey of law students to find out what they regard as the most pressing areas of need for amendment of our Constitution.”
If there’s one subset of the populace that I’d trust less with proposing new constitutional amendments than law professors, it’s law students. I think this demonstrates more about the ideological make-up of the student body than what would ever have a prayer of becoming the 28th Amendment in our lifetimes, even if I support several of these on policy grounds alone.
Interesting that two of the top 10 would gut the first two amendments of the Bill of Rights.
anon - November 2, 2009 at 1:00 pm
Any particular reason how all of the top-10 proposals are what one may consider politically liberal? Just curious.
Mike Zimmer - November 2, 2009 at 2:07 pm
The same-sex protection — equal protection and right to marry — did surprise me. However, a number of people have suggested that the issue of gay rights is generational. That young conservatives are more open to gay rights, or maybe are more libertarian in their conservativism than older people.
It is like younger and older Cuban-Americans and our relationship with Cuba. I have had a number of Cuban-American law students tell me their views differ from their parents and especially their grandparents.
Brett Bellmore - November 2, 2009 at 7:21 pm
“I wonder if the response would be different if the law school was not located in the heart of a major city.”
Considering that all but a handful of states have 2nd amendment analogs in their state constitutions, some of them adopted recently, and the gun control movement hasn’t succeeded in getting any repealed? Probably.
Jeff Hall - November 3, 2009 at 11:46 am
Isn’t it interesting that, except for #2, all of the suggested amendments would simply enshrine a desired policy into the Constitution?
The “Repeal of the Second Amendment” and “Constitutional protection for broad campaign finance legislation” would get rid of parts of the Bill of Rights that the students think protect unimportant people or rights. Suggestions 1 and 3-10 sound like the 18th Amendment, only with different issues-of-the-day. #2 is really the only suggestion that fixes a perceived flaw in the Constitution itself.
Mike Zimmer - November 3, 2009 at 12:24 pm
I know that when I teach Con Law, I try to get out on the table important and deep critiques of the structure as well as the individual rights parts. I maybe should do a better survey but, at the end of the course, students accept or presume there are no alternatives to the structural problems but they still like asserting propositions that advance individual rights, whether the right is to possess guns or to marry someone of the same sex. By saying this, I may, of course, be simply admitting that I am not such a great Con Law teacher.
SueSimp - November 3, 2009 at 8:13 pm
Or maybe it’s just that there’s a sort of intuitive feeling that the law of unintended consequences is less at play when fiddling with individual rights than when fiddling with the structure of the constitution.
It’s easier to feel confident you’re doing the right then when granting people the right to get married than when altering a delicate suspension of checks and balances that, for reasons never entirely understood, has somehow held together for over 200 years.
M.G.M - November 5, 2009 at 7:24 pm
How about an amendment reserving the protections of the Bill of Rights and other amendments for natural human persons, and specifically denying those rights to corporations?
That might fall under the notion of “protection for broad campaign finance legislation,” but could actually extend far more broadly.
Mike Zimmer - November 5, 2009 at 8:01 pm
If the Supreme Court does strike down the restrictions on corporation campaign contributions, I would expect that the issue of the “person”hood of corporate entities would get some more attention. Perhaps the way that would happen would be political campaigns at the state level to limit the authority of corporations to give campaign contributions as a condition of incorporation. My corporate law friends like Tim Glynn, however, might fear that this would just further the “race to the bottom” among states competing to get that incorporation business.
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