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Thursday, May 15, 2008
What will be the Next Constitutional Amendment?
It's been 37 years since the last contemporaneously proposed and ratified constitutional amendment (I'm setting the aside the 27th Amendment, with it's tortured 200-year history). There have been only two comparably long periods in our history without an amendment, the 61-year period between the 12th and the 13th Amendments, and the 43-year period between the 15th and the 16th Amendment. It strikes me as most unlikely that we will have another amendment by 2014, so in six years we will be in the second-longest period in our history without an amendment.
Constitutional amendments are notoriously hard to adopt. Even the important work of the Continuity of Government Commission, which developed bipartisan approaches to the compelling problem of government continuity in the wake of a massive terrorist attack, went nowhere. Is it possible that there will be no more constitutional amendments? We certainly need them. Fixing our idiotic system of electing the President would be a good start, but I'm not going to hold my breath waiting for that to happen.
So here's a question for our PrawfsBlawg readers: What do you think will be the next constitutional amendment? I'll check in in fifty years, and see if anyone got it right. Drinks on me for the winner.
Posted by Carlton Larson on May 15, 2008 at 12:17 PM in Constitutional thoughts | Permalink
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To help give people some starting guesses, here are the 23 proposals from Larry Sabato's "A More Perfect Constitution," most or all of which would require a constitutional amendment and which make sense as a total package:
http://amoreperfectconstitution.com/23_proposals.htm
Posted by: Howard Wasserman | May 15, 2008 12:59:16 PM
Victims' rights.
Posted by: Chris | May 15, 2008 1:10:33 PM
It might be interesting to break this up into two categories--our next amendment to the "law of democracy," and our next rights-oriented amendment. And let's call any expansion of the suffrage a law of democracy amendment.
For the law of democracy category, I could see term limits, the suffrage extended to 16-year-olds, or (though I agree breath-holding would be dangerous) popular election of the president.
The rights category is a far tougher cookie; the periods between these tend to be much longer than the periods between amendments generally. But this is why I like splitting the question up--it makes the exercise a little more like science fiction. An ERA comeback? Right to housing? Equal protection for non-heteros?
Posted by: Paul | May 15, 2008 3:35:22 PM
Eliminate the prohibition on naturalized citizens becoming president. (As much as I cringe at "Ah-nuld for President," this is the right thing to do for democracy.)
Ban the death penalty.
Expand the right to privacy by making it explicit.
Codify treaty law as self-executing federal law to ensure treaties are automatically given respect as part of the "law of the land."
Extend the right to counsel to civil indigents.
Limit the Second Amendment to law enforcement, military, and certain special licensees (museum collections, etc.).
Automatic and portable voter registration upon a citizen becoming naturalized or coming of age, with only the need to notify change of address and not having to re-register. Also, restore voting rights to formerly incarcerated people automatically upon release.
Ban the counting of persons ineligible to vote for purposes of House redistricting. This cuts both ways - districts where large prisons are located can no longer count inmates, but districts with large non-citizen immigrant populations will also be affected. However, immigrants will become naturalized, the prison population is not going down anytime soon.
Posted by: Q | May 15, 2008 10:04:57 PM
Realistically? There are a couple of candidates. In no particular order:
1) Pledge of allegiance amendment (if the Court ever holds that the pledge violates the Establishment Clause)
2) Flag burning ban amendment
3) Balanced budget amendment
4) Allowing non-natural born citizens to become President amendment
5) Abolishing the electoral college amendment
6) Term limits for senators and representatives amendment
7) Term limits for Supreme Court justices amendment
My money is on 1 and 4.
Posted by: Stephen Aslett | May 16, 2008 3:34:54 AM
What an awesome topic!
Okay, not talking about what I would want, but trying to imagine what might happen to precipitate an amendment:
1) Empowering state legislatures to ban abortion. I could see this happening if Roe were overruled, and the overruling were overruled - that might break up the uneasy peace on this issue.
2) Something limiting the jurisdiction of, or otherwise circumscribing the power of, the Supreme Court. Since the Court has gotten more bold as of late, I could imagine them doing something that would anger federal and state legislatures enough to pass an amendment. What would the trip wire be? I don't know. There's a lot of potential issues. What would the limitation be? I don't know that either. Could be term limits, as Aslett suggests.
3) Procedural and/or substantive limitations on treaties. I very much disagree with O, above, that we might see an amendment making treaties self-executing. Quite to the contrary, with increasing encroachment of globalization on various facets of American life, and with more and more cultural, social, and political segments of the population getting frustrated with various aspects of this, I could imagine a series of events where anti-globalization sentiment reaches a tipping point so that a broad base of disparate groups ban together to rollback the White House / Senate treaty power.
Number 3, I think, is the most likely.
W/r/t the electoral college, I would love to see that deleted, but if there was not a peep about it in 2000, I can't imagine what it would take to galvanize people enough to actually enact an amendment.
Posted by: Eric E. Johnson | May 16, 2008 8:03:58 AM
Eric: As or the Electoral College, it will take either a) the Electors ignoring the popular will as reflected in the aggregation of state-law results (i.e., a candidate wins 268 electoral-votes worth of popular elections, but the electors vote for the other candidate) or b) the E/C fails to pick a winner and the election gets thrown into Congress.
Count me as seconding either term-limits for judges or naturalized-citizens-as-president.
Posted by: Howard Wasserman | May 16, 2008 8:30:38 AM
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