Rank’em: Constitutional amendment edition

November 3, 2011

When I was a kid, my family used to spend a lot of time on our screened porch, mostly playing cards but sometimes playing old-school parlor games. Often, that meant rank’em, which entailed the following: a question that forced you to rank some set of things on some scale, a set of ground rules to guide you, 20 minutes for each person to come up with their answer, and then a discussion among the participants, hopefully heavy on the merits and light on the mocking/fights.

So here we go…rank’em!

Question

If you were forced to repeal an unspecified number of amendments to the U.S. Constitution, in what order would you rank them, #1 being the one you’d jettison first and #27 being the one you’d only give up after all the others were already gone?

Ground rules:

A. The game is played in present-day America.

B. Repealing an amendment does not go back and change history. You are merely setting the terms for a new Constitution that will apply starting today  (i.e. repealing the 13th amendment does not reinstall slavery in Kentucky, it just opens up the possibility of a state adopting slavery; likewise, repealing the 26th amendment does not end the right of 18-year-olds to vote, just ends the prohibition on states having higher voting ages).

C. No future amendments are allowed. Nothing can be re-enacted.

D. No assumptions about SCOTUS decisions are allowed (i.e. you aren’t allowed to repeal the 15th and 19th amendment on the grounds that the modern court would read those voting rights into the 14th amendment); nor are future SCOTUS decisions allowed to impact things.

E. Do not rank the Prohibition amendments (18 and 21); that’s a paradox we don’t need to deal with here.

So go ahead, rank’em.

Here is my annotated answer, 1 to 25. They are grouped in categories for intellectual purposes. To me, the key to this rank’em is trying to imagine what the effect of removing the amendment would be today, while setting aside the importance of the amendment historically. As it turns out, I think, many of the most important amendments historically are more or less functionally inert today, because of changing norms. It’s also important to weigh the impact of an amendment; many of the amendments that are still fully functionally have trivial outcomes for the polity.

Amendments that are more or less trivial

1. The 27th Amendment – Precludes adjustments in the pay of Members of Congress from taking effect prior to the next congressional election. It serves little purpose: Members are loathe to raise their own pay in any case, and the Ethics Reform Act of 1989 sets up an automatic adjustment system which renders the entire prohibition academic. Even if it was fully functional, it’s just not a very big deal. I don’t think there’s any doubt that this is the first one you’d want to jettison, unless you have a specific beef with another amendment.

Amendments rendered mostly trivial in the modern age

2. The 9th Amendment -  Conveys that rights of the people exist beyond those enumerated in the Constitution. This may have been an open question in 1791, but I don’t think it is now. In theory it may convey that certain specific rights exists (such as those found in the Declaration of Independence), but in practice it merely suggests something to keep in mind when interpreting the rest of the Constitution.

3. The 3rd Amendment – Prevents forced quartering of troops in private homes during peacetime.  A concern that has never materialized since the American Revolution. Now, that could be because of the existence of the amendment. But somehow I doubt it.

4. The 13th Amendment – Prohibits slavery. I can’t see any possible way that, absent this amendment, slavery returns. And if such a situation did arise, it would probably be precipitated by crises that had already left most of the Constitution in tatters.

5. The 15th Amendment – Guaranteed suffrage regardless of race. This is a tricky one because while the general principle is very well ingrained in our society and enshrined in state constitutions, there are continual worries about racial discrimination in voting access and such. Still, I can’t see any states enacting measures that fundamentally cross the basic principle of voting equality.

6. The 19th Amendment – Guaranteed suffrage regardless of gender. Like slavery and racial restrictions on voting, shouldn’t be a problem going forward in the absence of the amendment, especially because women form a voting majority or near-majority in every jurisdiction. I rank it below the 13th and 15th, however, because I can imagine some future zany state system in which women and men had different legal voting arrangements (like different age requirements or something). However unlikely that would be, it’s even more unlikely along racial lines.

Minimally Consequential Amendments

7. The 10th Amendment – Powers not delegated to the federal government or prohibited to the States, are reserved to the States or to the people. More or less an implied truism of the Constitution, and described as such by SCOUTS in 1931. Very rarely comes into play, but on occasion the Courts will use it to strike down federal laws forcing state actors to implement federal programs.  And no, I don’t think it will come into play in the health care rulings.

8. The 11th Amendment – guarantees states sovereign immunity from suits brought against it in federal court. I suppose I don’t know enough about the jurisprudence to judge its importance, but my sense is that, while it might trigger a flood of federal lawsuits against states, the substantive outcomes would not have massive ramifications. But I reserve all rights to be dead wrong about this, and I’m open to contrary arguments.

9. The 24th Amendment – Bars poll taxes. Poll taxes were already on their way out in 1964; at the time of adoption, only five states (Virginia, Alabama, Texas, Arkansas, and Mississippi) still had them, whereas all the states of the former Confederacy had them in 1920. This is the first amendment on the lis, however,t that I think might stand a reasonable chance of actually shaping a core democratic function; I could imagine a state implementing a poll tax today if it were repealed.

Consequential but not inherently important

1o. The 12th Amendment – Revamping of the presidential selection system. It’s an improvement on the old system — in which each elector got two votes and the second place finisher became VP — but the old system could have been lived with. The party system was what broke it in the 1790s, but also would have made it work had they stuck it out. The debacle in 1800 was a mistake, and I think parties would have figured out a way to ensure that no future Burr got all the second elector-votes that created the tie with Jefferson.

11. The 26th Amendment – Lowers the voting age. Or more precisely, bars states and the federal government from setting the voting age higher than 18. I’m quite sure that, absent the amendment, at least a few states would have a voting age of 21. Although I disagree with that policy (and mostly agree with Jon Bernstein), I don’t see it as particularly consequential as a substantive matter, and I’d be fine with a federalism approach to voting ages. Most of the benefits of a lower voting age are related to participatory democracy, not substantive policy outcomes.

12. The 22nd Amendment – Term limits for the President. This is the first amendment on the list that I think a sizeable number of people might want to kill. And I can definitely see the argument. But I’m no fan of the presidency, and I don’t like the idea of one person monopolizing it for someone’s entire childhood. Perhaps a three-term limit would have been better, but I’m definitely of the mind that a two-term limit is preferable to no limit.

13. The 23rd Amendment – DC voting rights for President. As far as symbolic amendments go, this is a good one. But without voting rights in the House, it’s a halfway measure that has never had any substantive consequence. Still, we are talking about the right to vote here. So I’d need a strong reason to move it further up the list and jettison it sooner.

14. The 20th Amendment – Adjusting the start date of terms of the Members of Congress and the President. I’ve written an extensive blog post on this, which hopefully will convince you that I haven’t given it too much priority here.

15. The 25th Amendment – Makes provisions for the replacement of the Vice President if he leaves office and provides for the situation of the incapacitation of the President. One of the amendments that’s almost never important, but could be strikingly important. I wrote an offshoot about this a few weeks ago.

16. The 7th Amendment – Trial by jury in civil cases. I do not have a good feel for just how important this is. On the one hand, my sense is that a large percentage of Americans will never be involved in a serious civil case. On the other, it’s probably a pretty strong bulwark against crony capitalism to have juries punishing corporate malpractice. But I honestly don’t have a great feel for how its repeal would condition state law, etc.

Important but not foundational amendments

17. The 8th Amendment – Bars excessive bail and cruel and unusual punishments. I consider this the least important of the criminal defendants’ rights in modern times. Most states have constitutional or statutory defendants’ rights that go beyond the basic federal Constitutional rights, and the range of acceptable punishments in the modern era are certainly narrower than in the late 18th century.

18. The 16th Amendment – Empowers Congress to impose graduated income tax.  Pollock v. Farmers’ Loan & Trust had declared income taxes on non-wage income (such as investment or rent income) to be unconstitutional non-apportioned direct taxes. Whether an income tax on wages could be structured successfully without creating massive tax havens, disproportionately favoring the wealthy, or creating other economic problems, I do not know. But I’m guessing the answer is that it could not be. Therefore, pretty important amendment given the structure of modern revenue-raising in the United States.

19. The 2nd Amendment – Right to bear arms. I don’t own any guns, and I’m not a huge gun-rights guy, especially for a libertarian. For instance, I have no problem with background checks and purchase limits and other non-fundamental restrictions.  But when you watch how state-sponsored thugs in Iran or elsewhere assault private citizens on their own property with total fearlessness and impunity, it makes me 100% in favor of  the Heller decision. I’m sure many people would jettison this much sooner.

20. The 17th Amendment – Direct election of Senators. I’ve written an extensive blog post on this amendment as well, specifically dealing with the idea of repeal. In the modern environment, malapportionment and the filibuster already create tremendous public angst about the Senate; returning to the old selection system would only increase that angst.

Uniquely important, but not foundational

21. The 14th Amendment – Much of the 14th amendment — the implicit setting of the maximum voting age at 21, the barring of former rebels from federal office, the validity of the public debt (ed: well maybe not that one!) — is irrelevant now. But the relevant parts — the citizenship clause, the due process clause, and the equal protection clause — form the basis of the modern constitutional structure and the relationship between the States and the Constitution. It’s very easy to imagine a democratic republic without the 14th amendment. But there’s a decent chance it would be a very different republic.

Foundational Amendments

22. The 5th  Amendment – Right to jury indictment; due process; no double jeopardy; no self-incrimination; no government takings of property.

23. The 6th Amendment – Right to a speedy public trial by jury in criminal cases; right to legal counsel.

These can be grouped together in my mind. Highly important defendants’ rights. I place the 6th amendment as higher priority than the 5th, because of the way the two amendments work in concert. Absent the right to a speedy public trial by jury, the 5th amendment ceases to protect you in a meaningful way. But (I think) the opposite is not quite as true: even without protections against double jeopardy and self-incrimination, a requirement of a speedy public trial by jury assisted by counsel should still afford the defendant a decent situation.

Essential Elements of a Modern Liberal Democratic Society

24. The 4th Amendment – Prohibition on unreasonable search and seizure. I’ve written a blog post on my recent personal experience with this amendment, and another on the Patriot Act. There’s a non-crazy argument, in my mind, that you’d want to get rid of the 1st amendment before this; the norms of the 1st amendment are probably more embedded in society than the norms of the 4th amendment. But in any case, this has to be at least second-to-last. The natural impulse of state power in a democracy is to chip away at this right. Ditching it would open the floodgates to a less free society. And while it’s true that most states have the equivalent amendment in their constitutions, the federal government is of a main concern here, which (I think) is less so in the case of the 5th and 6th amendments.

25. The 1st Amendment – Freedom of speech, press, and religion. Again, I’m not 100% sure this is more important than the 4th amendment on a day-to-day basis in contemporary America. But it’s definitely more important in theory, since it affects the policy outputs of the democratic process so much more directly. It’s true that the basic norms of the amendment are well ingrained in the United States. But it’s also true that the limits of the boundaries on these norms are constantly tested by both state and, to a lesser degree, federal law. So I think it has to be the foundation of any constitution, and therefore it’s the last amendment I’d dump.

Feel free to bicker with me in the comments.

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11 Responses to Rank’em: Constitutional amendment edition

  1. Guillaume on November 3, 2011 at 4:08 pm

    “But when you watch how state-sponsored thugs in Iran or elsewhere assault private citizens on their own property with total fearlessness and impunity, it makes me 100% in favor of the Heller decision.”.

    Sure, you’ll stop a full SWAT team at your door with the couple of handguns you bought for self-defense. If these thugs are state sponsored and they’re allowed access to any military-grade weapon, you have no chance – 2nd amendment or not. You basically have to trust that the State is not going to assault you.

    • Matt on November 3, 2011 at 4:14 pm

      That’s surely true in the case of SWAT teams; if the state wants to crush individuals or neighborhoods, they can. But that’s not how dictators operate in many cases; they simply don’t have the men or resources to project that sort of power across tons of cities. So they resort to what we saw in Iran last year: militias of thugs, often armed with only knives or handguns, operating in groups of 3 or 4, without vehicles. Such thugs would have definitely thought twice about interrupting protests and going onto private property if the citizenry of Iran was armed.

      • Guillaume on November 4, 2011 at 10:10 am

        a state which can’t arm his thugs won’t allow you to buy any weapons and even if you could, that’s doubtful you could afford them while the state can’t. And a state who can provide them with military-grade weapons will allow you to buy much less powerful weapons.
        My point really was that I think the argument for the 2nd amendment as a meaningful defense against the State is bogus. But I am digressing from the original topic :)

  2. Julia Azari on November 3, 2011 at 4:43 pm

    Fascinating! Based on what you are implying about how changes in informal norms or culture renders Amendments obsolete, I think you will really like my forthcoming piece in Perspectives with Jenny Smith.

    Your dichotomy as you get to the most essential amendments is interesting. The final category is “essential to a free society.” No quibbles here, but I think your comment about the 14th Amendment really highlights something else – those rules that make a functional republic, and those that construct the *American* republic. In your conceptualization, it seems that there are no Amendments that are fundamental to the American-ness of the republic; in other words, formal rules set up a liberal democratic set of institutions but the character of the republic is forged informally. An interesting contrast to the Constitutional politics that dominated the 2010 election cycle and the arguments about “American exceptionalism” that have accompanied this Constitutional view.

  3. Julia Azari on November 3, 2011 at 4:45 pm

    Oops, I meant to include some fake html mocking my own self-promotion above, but the internet read it as real html and rejected it! It’s supposed to say “end self-promotion” after the bit about Perspectives.

  4. Kevin E. on November 3, 2011 at 6:10 pm

    This is a great exercise; I’m going to force it upon my students one of these days.

  5. Bridget on November 4, 2011 at 12:44 am

    From a human rights perspective, the fact that the ninth amendment essentially has been written out of the constitution is one hell of a missed opportunity. It’s funny, our perspectives are completely different here – to me, the constitutional guarantees are for the worst of times. But then, I know so little about the actual administration of our government that as far as I’m concerned, it can all be dispensed with.

    For what it’s worth, I think you’re undervaluing the sheer amount of precedent you’d be tearing away with the 14th amendment, however you might feel about the right to privacy (see ninth amendment comment above). Ditto for the effect of the 10th and 11th amendments on the shape of our government, but these are values I personally am less concerned about. (As you say, it’s very easy to imagine a democratic republic without these amendments. But there’s a decent chance it would be a very different republic.) As far as I’m concerned, state sovereignty is mostly a huge pain in the ass.

    Oh, and without the sixth amendment, the right to counsel and a speedy trial would easily be absorbed into due process, so I think you can reverse 5 and 6. That said, I think you’re really giving the 8th short shrift – the bar against cruel and unusual punishment is a right that is constantly asserted in court and serves as an important check on our – oh, let’s call it occasionally arbitrary – criminal system.

    Little more to be said about the beauty of the first amendment. If we want our warm and gooey America to last it out, it’s the disgusting edges of our society (KKK parades; Guantanamo detainees; OWS) we have to fight for.

    • Matt on November 4, 2011 at 1:40 pm

      Interesting. My grasp of the relative importance of 5 and 6 is clearly very pedestrian. Although by the ground rules of the rank’em, I’m not sure you can absorb the right to counsel and speedy trial into due process — the rules clearly state that there’s no reinterpretation of SCOTUS allowed — just as you can’t assume the 19th amendment into the equal protection clause.

      I don’t think evidence that a particular claim floods the federal courts — as you suggest with the 8th — is sufficient evidence for importance. But I’ll take your word on it.

  6. Bridget on November 4, 2011 at 12:52 am

    Sorry, by “state sovereignty” i meant sovereign immunity. just a little tired, not an anarchist.

  7. Emery Lee on November 4, 2011 at 6:33 am

    Given the development of Supreme Court case law, with the due process clauses, but especially the one in the 14th amendment, the 9th amendment is pretty irrelevant. Throw in the equal protection clause, and it is almost completely irrelevant. So I don’t think that the 9th was a ‘missed opportunity’. It’s just not necessary when the 14th amendment probably works (at least as far as the states are concerned).

  8. Matt on November 4, 2011 at 1:42 pm

    How’d I know that this post was going to bring out all the lawyers!

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