Drafting the 28th Amendment
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.