The 28th Amendment of the United States Constitution
Article 5 of the United States constitution sets forth the process for amending the United States Constitution. There are two processes available: An application by 2/3 of the states for a constitutional convention, which then must go through a ratification process or a proposal for an amendment is tendered by 2 thirds of both houses of Congress, which must then undergo a ratification process
(
https://www.archives.gov/federal-register/constitution/article-v.html ).
Back in the 20th century, constitutional amendments were proposed and ratified with some regularity, but that changed since 1992, when the 27th Amendment was passed. In May 2020 it will be 28 years since the US Constitution was amended.
Two separate processes for amending the constitution exist, however, historically, the process whereby the Congress proposes an amendment which is then subsequently ratified has been more effective. In the interests of promoting a greater harmony between the Senate and the House, which more recently have publicly displayed the growing acrimony the prevailing interests of each chamber has for the other, please allow me to humbly suggest some potential topics to be addressed by the 28th Amendment:
Revise Article V
One option for the 28th Amendment could be to revise Article 5 and, for example revise, revoke, or clarify the existing process for revising the constitution itself. Such a revision could require more or less consensus or could proscribe an entirely different process by which to amend our constitution.
Court to review SCOTUS Decisions
Article 3 Section 1 of the US Constitution could be revised, to provide for a court to review decisions by the United States Supreme Court. Such a court could concern itself only with reviewing Certiorari decisions. The existence of the possibility to review Certiorari decisions would encourage the articulation of a more defined jurisprudence in this area, thus relieving the SCOTUS of its current burden. Another possible role for such a court could be to offer an avenue for review for SCOTUS decisions that were reached with a 5-4 vote by the justices. Such review could serve to promote an even greater focus on consensus building when the SCOTUS is deciding cases.
The Justices for this, created by the 28th Amendment Court, could be appointed to fixed, non-renewable 2 year terms. For example, if such a court were to have 4 justices, two could be appointed by the Senate, and two could be appointed by the House. If there was concern about a four jurist Certiorari Court of Appeals deadlock, perhaps such a court could have 5 justices, the 5th justice could be appointed by the POTUS or the SCOTUS.
The published decisions that such a court would encourage would likely refine all legal practitioners’ thinking and process, and, further, would provide an additional forum from which future Supreme Court justices could be vetted and selected.
Revocation of Existing Amendments
The cooperation that is needed by the process that is required to amend the Constitution suggests that amendments should focus on the most fundamental aspects of the operation and makeup of our republic.
One possible use of the 28th Amendment could be to revoke or revise the 22nd Amendment, which directs that “no person shall be elected to the office of the President more than twice.”
Living former presidents are about as rare as living former Supreme Court justices. Currently, those wishing to maintain or recapture their former power can aspire to be appointed to the SCOTUS, or have their spouse run for office. Revocation of the 22nd Amendment would alter the balance of power for these individuals, as well as for the current POTUS.
Another possible use of the 28th Amendment could be to repeal the 16th Amendment, thus leaving taxation of income to the states. While it’s hard to imagine marshaling the support needed to pass such an amendment, it is, at the least, a useful exercise to help us imagine scenarios distinct from our present reality under which the US Government could operate. Thinking about what a government without a 16th amendment would look like also helps us to grasp the possibilities available to us when reimagining the future of our republic.
Preservation of Presumption of a Market Economy
The 28th Amendment could articulate and direct that the United States is a republic centered on a market economy, that trade and industry are to
be controlled by private owners for profit and that, wherever unenumerated, the power of the government should be construed in favor of same.
“Private ownership of means of production and operation shall be for profit.”
There are, of course, so many options for the 28th Amendment; the preceding suggestions are some food for thought. Happy Fat Tuesday, all!
Have fun. Be nice. Think Bigger :)
