The Problem of the 28th Amendment

Here is a question from my exam in Constitutional Law:

The U.S. Constitution contains 27 amendments; the most recent (the 27th), was ratified in 1992. Write a proposed 28th Amendment and explain why your proposed amendment should be adopted. The proposal may deal with any issue you wish.

In addition to giving me something interesting to read when I’m grading, this question is very useful for seeing how well a student understands the Constitution. It’s not easy to draft an amendment that accomplishes what you want (no more, no less) and that fits into the existing Constitution as a whole.

In grading answers, I’m not much concerned with the particular change a student suggests making—my main focus is on how well the student executes the proposal.

If, for instance, a student proposes abolishing the Supreme Court, I expect to see some thinking about how appellate cases will henceforth be decided. If a student wants states to have a power to maintain armies, there should be some attention to resolving the likely federal-state conflicts that will arise. Form also matters: a 2,000 word amendment dealing with the minutiae of traffic regulation would be out of place in a document that creates the structures of government and secures our most important freedoms.

Exam-taker with ID number 43 thinks it’s a good idea to amend the Constitution to prohibit, as he puts it, “activist judges” and maverick local officials from allowing same-sex couples to get married. To accomplish those ends, 43 proposes the following amendment as the 28th Amendment to the U.S. Constitution:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

How well did 43 do?


The amendment is obviously a rush job by a novice rather than a carefully drafted proposal by a seasoned constitutional lawyer. That’s understandable given that 43 only had eight hours to answer this and my other exam questions. Still, compared to other exam takers, 43 does not display a very good grasp of the Constitution. He seems to have missed the basic structure of the document and he displays little regard for its purposes. (Perhaps he didn’t follow my advice to read the Constitution on a regular basis?)

43’s proposed amendment clearly does not fit with the existing Constitution. Defining marriage is more the province of legislatures—there is nothing comparable to a marriage definition in the Constitution. While the Constitution does refer to a union, it is not, as 43 wants it, a union between a man and a woman, but a “more perfect Union” among the states.

43’s proposal purports to determine the meaning of state constitutions. Nothing in the federal Constitution does that. (Is 43 a radical nationalist?)

While many of the provisions of the Constitution confer rights on people, 43’s proposal singularly would take rights away. That represents a momentous change. (43 must be counting on the public having strong and deep support for the politicians who push this amendment.)

Then there is the sloppy passive wording of 43’s proposal: “Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.” Construed by whom? Conferred by whom? Judges? (State or federal?) Voters? City Hall?

It’s clear what it means to get married and to be married. But what precisely does it mean to “confer” “marriage” “on” a “union”? Instead of “Will you marry me?” should we now ask “Will you with me have conferred marriage on a union?”

And how about if a state Constitution makes marriage available? Would applying that constitutional provision be “construing” it? What if the state calls it not marriage but morriage? Are the unnamed construers and conferrers safe if they’re working with morriage and not marriage?

What precisely are the “legal incidents” of marriage? A marriage license? A mention in the Washington Post Nuptials? All of the benefits married couples receive under (state? federal?) law? And if you can’t confer the “legal incidents” of marriage does that mean you can (must?) confer the illegal incidents of marriage—and what might they be?

The proposal doesn’t accomplish what 43 wanted. The amendment’s textual ambiguities and its awkward fit with the existing Constitution as well as the radical revision it seeks in our political arrangements will generate difficulties 43 did not consider. Rather than curb activist judges, 43’s proposal will invite widely varying judicial interpretations.

Bad answer, 43.

But there’s grade inflation.

So you get a C.

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20 Responses

  1. Matt says:

    “The amendment is obviously a rush job by a novice rather than a carefully drafted proposal by a seasoned constitutional lawyer.”

    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.

  2. RCinProv says:

    I’m not sure that I understand the criteria for deciding what is “out of place.” Would a national speed limit, say, be “out of place”?

    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.

  3. Ken Arromdee says:

    I could describe the First Amendment in a similar fashion. Even just looking at the freedom of speech section, those few words are loaded with so many ambiguities that it is impossible to tell exactly what the amendment means without hundreds of court cases to interpret exactly what “abridging the freedom of speech” means. Does speech include newspapers? TV? The Internet? Nazi marches? Is it abridging the freedom of speech to ban libel? Are time, place, and manner restrictions considered abridgment? What about speech with no socially redeeming value?

  4. Bob VDV says:

    Heh. Looks like #43 would be better off getting his MBA rather than a JD.

  5. Mark says:

    Jason –

    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?

  6. RCinProv says:

    And I don’t understand why you haven’t posted my earlier comment!

  7. Jason Mazzone says:

    To answer Mark’s (good) questions:

    “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

  8. Jason Mazzone says:

    RC: You got caught in our spam filter but I’ve rescued your comment and it’s now posted. Thanks for letting me know. JM

  9. Simon says:

    Jason –

    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.

  10. Jason Mazzone says:

    Simon:

    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

  11. Mark says:

    Jason –

    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

  12. Jason Mazzone says:

    Mark,

    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.

  13. Simon says:

    Jason,

    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.

  14. Simon says:

    By the way, doesn’t this exam question pose the obvious point for number 43: students should be familar with their Professors’ scholarship, and ready to do battle with it. 😉

    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.

  15. Mark says:

    Jason –

    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.

  16. Jason_Mazzone says:

    Mark:

    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

  17. 1st amendment rights:free speech,freedom of religion,free press & right of people to peaceably assemble to redress government grievances.2nd amendment rights:right to bear arms.

  18. larry swenson says:

    PEOPLE 18 AND OVER, NOT 35 AND OVER, SHOULD BE ABLE TO RUN FOR PRES. GO PEACE PARTY!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  19. Trevor says:

    Constitutional Ammendment XVII-

    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.

  20. Alan says:

    Trevor

    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.