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Essay:Needed Constitutional Amendments (Blue)

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Needed amendments to the Constitution[edit]

The amendments were written to mimic the grandiose, legalese-y prose the Constitution itself was written in, which might be less than easily understandable. I had fun, though.

But I explain what the hell I mean when I write these amendments to the right. So, no excuses. And, for your benefit: “United States” = generally, the “federal government,” “district constituting the seat of government in the United States” = Washington, D.C. I’ve not provided commentary on all the sections beginning with “The Congress shall have power to enforce…” because it should be fairly obvious—if not, the reason is that this section grants Congress an enumerated power, i.e. an immediate, textual Constitutional justification, rather than having to go through the “icky” Necessary and Proper/Elastic Clause.


Text of proposed amendments[edit]

Commentary/Rationale[edit]

XXVIII.
Section 1. All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. All rights, privileges, and immunities reserved to citizens of the United States by this Constitution shall not be denied or abridged by any State. The rights and freedoms guaranteed to citizens of the United States are hereby doubly reserved to the citizens of any State; similarly, the various restrictions upon the Congress from making or enforcing a law in violation of the rights guaranteed to citizens of the United States are hereby doubly valid for the legislatures of the several States.

XXVIII: Total Incorporation
Section 1.
This amendment is meant to totally incorporate the rights specified in the Bill of Rights, as well as a few other rights guaranteed in other areas of the Constitution, against the states. This would modify Section 1 of the Fourteenth Amendment and would overturn the 1872 Slaughter-House Cases.

The Bill of Rights has been incorporated against the states slowly over the last several decades. As a matter of fact, almost all of it has been incorporated through various Supreme Court cases—only the Third Amendment and a few other provisions remain unincorporated. However, stare decisis is not enough to maintain the Bill of Rights’ incorporation. The vagueness of the Fourteenth Amendment’s privileges and immunities clause and due process clause makes a Constitutional enshrinement of total incorporation necessary.

Section 2. The Congress shall have power to enforce the provisions of this article by appropriate legislation.

XXIX.
Section 1. The President and Vice President shall be elected by the people of the several States and the district constituting the seat of government of the United States. The votes for President and Vice President shall be counted by the several States and the district constituting the seat of government of the United States. In the event of a tie for either Office, the votes shall be recounted by the several States; if it is determined again to be a tie, or the vote is found to be fraudulent or otherwise dishonest, the election of the President and Vice President shall occur again. If the vote was dishonest in less than all of the States and the district constituting the seat of government of the United States, the vote shall only be repeated in those States in which the count was dishonest. The date upon which the President-elect and Vice President-elect are inaugurated shall be postponed for the same amount of time as the interval between the first election and the second; however, the President shall leave office on the previous inauguration date. During the period between the previous inauguration date and the postponed inauguration date, the Speaker of the House of Representatives shall execute the duties of the Office of President.

XXIX: Electoral Reforms
Section 1.
This amendment provides for direct election of the President and Vice President, rendering the Electoral College system null.

Then there’s a lot of jargon about what happens if the vote is fraudulent or if there’s a tie. You’d see why it has to be so long and explicit if you looked at the full text of the 12th Amendment, which this amendment replaces and supersedes.

Section 2. The persons having the greatest number of votes for President and Vice President shall be elected. The right of the people to a fair, secret and properly tallied ballot for the election of the President, Vice President, Representatives and Senators shall not be denied or abridged by the United States or by any State.

Section 2. The first thing this section does is apply Twelfth Amendment-style voting to the new system—people cast separate ballots for President and Vice President.

This section also ensures that the winner of the election will be the candidate with the most popular votes. Guarantees the right to a secret ballot, and the right to have a properly counted vote. Hopefully, this “properly tallied clause” will prevent any future Bush v. Gore cases in a broad sense, by invalidating state laws that discourage or prevent recounts.

Section 3. The twelfth article of amendment to this Constitution is hereby repealed.

Section 3. Because the 12th Amendment sets the procedure for the election of the President and Vice President under the Electoral College system, it is no longer valid. Sections One and Two of this amendment sets the new procedure for the election of these offices.

Section 4. The twenty-third article of amendment to this Constitution is hereby repealed.

Section 4. The 23rd Amendment provides for Washington, D.C.’s participation in the Electoral College system—seeing as this system was abolished by this amendment and is no longer functional, the 23rd Amendment is void.

Section 5. The Congress shall have the power to regulate the requisite qualifications for electors of the President and the Vice President, excepting that the requisites for electors of the President and the Vice President may not be more restrictive than the requisites for electors of Senators and Representatives. The qualifications for electors of Senators, Representatives, the President and the Vice President shall be uniform for all citizens of the United States.

Section 6. The Congress shall have power to enforce the provisions of this article by appropriate legislation.

XXX.
Section 1. Neither Congress nor any State shall enforce the administration of capital punishment to citizens of the United States.

XXX: Prison and Torture
Section 1.
Ends the death penalty in the United States. A fair amount of individual states have already done this, and the United States is lagging behind the rest of the developed world in outlawing the death penalty.

Section 2. All persons held in captivity by the United States, in times of war and times of peace, shall not be subject to cruel or unusual punishment, either by agents of the United States or agents of foreign nations acting at the direct or implied behest of the United States.

Section 2. This grants some official Constitutional rights to “enemy combatants,” i.e., rights against being tortured. This does not grant them other rights, such as habeas corpus or a speedy and public trial—I must be practical, rather than overly idealistic. It also should prevent US agencies from rendering prisoners to other countries for torture.

Section 3. The Congress, the several States, and the President of the United States shall have power to enforce the provisions of this article by appropriate action.

Section 3. Note that this grants more powers to the President, as well as Congress.

XXXI.
Section 1. The district constituting the seat of government of the United States shall elect the whole number of Senators and Representatives to which it would be entitled if it were a State to serve in the Congress.

XXXI: Washington, D.C. Voting Rights
Section 1.
Gives Washington, D.C. representation in Congress equal to what it would have if it were a state. That the US maintains virtual representation this far into the 21st century is, in a word, shameful. This same principle of virtual representation is most famous for being the British Empire’s chief rationale for taxing its colonies, who of course did not have direct representation in Parliament. The idea was that Parliament would have the colonies’ best interest at heart, so they were represented—“virtually.” Now, Washington, D.C. is not going to declare independence from the United States for lack of representation, but the fact that America has utilized the same rationalization for not allowing one of the most populous cities in the world to participate in its republic as the Empire it so reviled, hundreds of years ago, is shameful.

Section 2. The Congress shall have power to enforce the provisions of this article by appropriate legislation.

XXXII.
Section 1. A person who is a citizen of the United States, who has been a citizen of the United States for twenty years and is otherwise eligible to the Office of President of the United States, is not ineligible to that Office by reason of not being a native born citizen of the United States. A person who is a naturalized citizen of the United States at birth, who is otherwise eligible for any public office in the United States or the several States, is not ineligible by reason of not being a native born citizen of the United States.

XXXII: Naturalized Citizens’ Eligibility for Office
Section 1.
If you’ve been a citizen of the US for 20 years, and that’s the only thing keeping you from being President, that disability is removed. The text is largely taken from a failed amendment proposed by Senator Orrin Hatch.

The second clause is meant to essentially remove all differences between citizens naturalized at birth (say, if their parents are citizens but they were born outside of the United States) and citizens born in the US, with regards to eligibility to public office anywhere in America, including state positions.

Section 2. The Congress shall have power to enforce the provisions of this article by appropriate legislation.

XXXIII.
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of gender, sexual orientation, or lifestyle, except when the United States or any State has a compelling interest to protect the safety and rights of its citizens.

XXXIII: Equal Rights
Section 1.
The first part of this section is taken word-for-word from the proposed text of the Equal Rights Amendment. But included in the ERA’s provisions for equality of sex (which I change to gender) are sexual orientation and lifestyle.

The “compelling state interest” doctrine is fairly straightforward and has served as a precedent in many legal cases allowing discrimination. This could be as basic a state preventing employers from firing due to pregnancy or allowing women paid maternity leave, but affording men no such options, because the state has a compelling interest to protect the safety of women by discriminating based on gender.

Section 2. The Congress shall have power to enforce the provisions of this article by appropriate legislation.

XXXIV.
Section 1. The second article of amendment to this Constitution is hereby repealed.

XXXIV. Gun Control
Section 1.
This is probably the least practical proposed amendment—the “right to bear arms” is just too strongly ingrained into American culture. But I strongly believe that governments should have power to regulate arms, prevent certain groups from having guns, and prevent certain types of guns from being sold.

Repeal of the 2nd Amendment does not mean that nobody would be allowed to “keep and bear arms.” It would only remove the disability placed upon Congress and the states from regulating guns. Recent decisions like D.C. v. Heller, to me, make it abundantly clear that the 2nd Amendment is obsolete and should be disposed of.

Section 2. The Congress shall have power to enforce the provisions of this article by appropriate legislation.



This is the first part of a planned essay series about the United States Constitution.