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.