One Step from the Start: Potential XXVIII Amendments in Congress – The Future of the Constitution, Part IV

What will become Amendment XXVIII is up for debate, but chances are that it might already exist in Congress.

In celebration of Constitution Day on September 17, 2014, we are dedicating the week to a new series, “The Future of the Constitution“. Designed to examine the Constitution and its Amendments, “The Future of the Constitution“ will examine the amendment process, analyze existing, failed, and prospective amendment, take a look at the constitutional quandary found in campaign finance reform in the post-Citizens United era, and end with a review of retired Supreme Court Justice John Paul Steven’s newest book, “Six Amendments: How and Why We Should Change the Constitution”.

In Part I of the series, we discussed how the Constitution can be amended and gave a brief overview of the Constitution’s history and contents.

In Part II, which is broken up into three sections, we outlined the Bill of Rights, the Eleventh through the Twentieth Amendments, and we will examine the 21st through the 27th Amendment shortly.

In Part III, we delved into the six prospective amendments that were adopted by Congress, but fell short of the ratification threshold in the states.

Now, in Part IV, we will examine some of the many potential amendments that still linger in Congress, but have caught the public’s attention and may start or have come close to starting the process of being adopted and ratified.

Out of the hundreds of amendments that are proposed in Congress, only a handful are ever adopted. There are some that rise above the chaff though. By way of shifts in public sentiment, controversial Supreme Court decisions, international or national controversies, or some other unforseen event, some prospective amendments find themselves in the spotlight and the subject of some support. While not enough to be adopted by Congress, let alone ratified, these prospective amendments have left their mark on history, and may make a reappearance before long.

1. A Balanced Budget Amendment – Designed to ensure that the federal government maintains a balanced budget; essentially, it would prevent the United States from spending more than it raises, except in times of national emergency or some other similar disastrous situation. The Constitution is silent on whether a balanced budget is necessary, and attempts to amend it over the past couple of generations have been unsuccessful. That being said, every state but Vermont has added a provision to their constitutions that address the necessity of a balanced budget. As concerns about the federal budget rise along with the deficit level, expect debate continue on whether a Constitutional amendment is necessary to alter government spending levels.
2. A Death Penalty Abolition Amendment – Introduced many times in the late 20th century, this amendment would require the end of all capital punishment procedures in the United States. This amendment never made it far in Congress, but its repeated appearances give it some measure of familiarity. It has also gained a powerful new supporter in retired Supreme Court Justice John Paul Stevens, who argues in his new book “Six Amendments: How and Why We Should Change the Constitution” that the Eight Amendment should be amendment to make it clear that the death penalty is an example of a cruel and unusual punishment.
3. A Flag Desecration Amendment – Provoked by the landmark Supreme Court cases Texas v. Johnson (1989) and United States v. Eichman (1990), both of which found the burning of the American flag constitutionally protected symbolic speech, the Flag Desecration Amendment was short and specific. Its text was a single line, and read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States”. The Flag Desecration Amendment was introduced in every Congress between 1995 and 2006; it was passed by the House of Representatives each time, and then barely died in the Senate. In 2006 though, the amendment came incredibly close to being adopted, failing only by a single vote (66 to 34, when 67 votes was needed). Popular support for the amendment varied over time, occasionally reaching majority support. Since the amendment’s 2006 death though, the Flag Desecration Amendment has not been introduced in Congress.
4. A Human Life Amendment – Directly a result of the controversial landmark Supreme Court case Roe v. Wade (1973), a Human Life Amendment would constitutionally ban the newfound protected right for women to have an abortion. The Amendment itself took many forms. Occasionally, it was designed to ensure that all human beings, from the moment of conception, had access to due process and all other Constitutionally guaranteed rights. At other times, the amendment focused on providing the right to freely regulate access to abortions to the states, instead of the more stringent requirement to only have reasonable regulations imposed by the Supreme Court. Occasionally, the amendment does away with pretenses, and outright bans abortion in the United States. Regardless of the form, the amendment only found its way to the floor of the Senate once, where it failed. Still, hopes for a Human Life Amendment is kept alive primarily by the Republican Party, which has maintained a plank calling for this constitutional amendment in its party platform.
5. An Equal Opportunity to Govern Amendment – This amendment would end the longstanding and constitutionally enforced tradition on non-naturalized citizens not being able to run for either the Presidency or the Vice-Presidency. This amendment would shift the requirement from being a natural-born citizen of the United States, to being an American citizen who has been a citizen of the United States for at least twenty years. Considering the time the amendment was introduced (2003), this amendment was widely considered to be an opening for then California governor Arnold Schwarzenegger to run for President. This amendment never made it out of the committee stage, but as America becomes increasingly diverse and internationally connected, it may make a reappearance.
6.  A Federal Marriage Amendment – With all of the pro-marriage equality news and significant shifts in public approval of LGBT Americans in recent times, the period when states were constitutionally defining marriage as a relationship between one man and one woman seems like a bygone era. In actuality, it was not even a decade ago when this amendment found its way to the floor of Congress, marriage equality was a wedge issue that motivated the Republican electorate, a majority of states ultimately amended their constitutions to ban marriage equality, Massachusetts was the lone state where gay Americans could legally wed, and the President of the United States was an advocate for amending the Constitution that for the first time would result in a reduction of equal rights. The celerity of the shift in public support since the Federal Marriage Amendment died on the House and Senate floors in 2006 cannot be underestimated; the LGBT movement has undergone the fastest transformation in public sentiment and support ever in American History. The majority of the United States now supports marriage equality, and though there are numerous challenges, legal and otherwise, for LGBT people to come, the threat of a Federal Marriage Amendment is now marginal – an incredibly difference from the time less than a decade ago, where the possibility of marriage equality seemed like it might vanish forever.
7. A Campaign Finance Amendment – Following the Supreme Court’s landmark Citizens United v. Federal Election Commission (2010) ruling, there have been calls to reform America’s system of campaign finance through legislation and a constitutional amendment. The latest effort to do so, informally called the Udall Amendment after its primary sponsor, Senator Tom Udall, was the latest attempt to reform the system. While the Udall Amendment made headlines for a few days, it died on the Senate floor on a failed cloture vote. With the rapid escalation and presence of money in politics though, and with the Supreme Court reinforcing and expanding Citizens United in McCutcheon v. Federal Election Commission (2014), do not be surprised to see further attempts to adopt and ratify a Campaign Finance Amendment.

These seven are only some of the many amendments circulating Congress. Hundreds will be proposed each Congress, and many will die without ever having their moment in the spotlight. For amendments like these though, and for all those inspired by a future Supreme Court ruling or national controversy, adoption and ratification appear to be on the brink of feasibility.

Next Time in “The Future of the Constitution“

In Part V, we will examine the future of the Constitution, and what amendment might endure the long journey to become Amendment XXVIII.

Part VI of the series will outline that latest prospective amendment to capture the public’s eye, S.J. Res. 19, commonly called the Udall Amendment. Designed to constitutionally alter the realm of campaign finance reform, we will analyze the positives and negatives of the prospective amendment, why it failed in the 113th Congress, and what the future of campaign finance reform may look like in a post-Citizens United era.

Finally, in Part VII, we will review retired Supreme Court Justice John Paul Stevens’ latest book, “Six Amendments: How and Why We Should Change the Constitution”.

~ John Isidore