12 other Constitutional amendments that won’t happen anytime soon
Ending the concept of birthright citizenship isn’t something Donald Trump just dreamed up yesterday: He’s actually been talking about it for years, including just after his 2015 campaign announcement.
Back then, he complained that a Constitutional amendment to end the practice of granting citizenship to anyone born in the US would take too long. What he was saying to CNN’s Chris Cuomo more than three years ago as a new candidate isn’t completely different than what he’s said in recent days.
Here’s that exchange from August 19, 2015:
TRUMP: Number one, the 14th Amendment is very questionable as to whether or not somebody can come over and have a baby and immediately that baby is a citizen.
CUOMO: I know. The court has pretty much said and agreed that immigrants here, this isn’t a minority legal opinion you are talking about.
TRUMP: Chris, there are many people that totally feel that…
CUOMO: They may have want it that way.
TRUMP: … amending is too big of deal it’s going to be take — it will be two terms, I’d be in my second term on my eighth year by the time assuming everything went smoothly because to amend the Constitution….. I believe you can win it legally OK? I believe you can win it legally. And in any event the parents have to leave, if the parents leave, unless they are very bad people, they got to take their baby.
Now Trump is pushing the idea again as a way to fire up his base supporters in the waning days of an election where his party is expected to suffer losses that could cost them control of the House of Representatives.
Whether he will actually follow through and sign some sort of executive action telling the government to essentially ignore the 14th Amendment after the heat of the election season is over remains to be seen.
But Trump is certainly right that amending the Constitution takes time. It’s so hard, in fact, that it’s only been done 17 times since the initial Bill of Rights was enacted. That’s a total of 27 amendments in more than 200 years, the last of which was officially codified in 992 after a decades-long effort. And that was for the politically benign purpose of not letting federal lawmakers raise their own salaries until after the next election. Something politically charged like upending an amendment passed to guarantee citizenship to freed slaves would be something else entirely.
It’s not unprecedented to pass an amendment undoing a previous amendment. The 21st Amendment undid the 18th Amendment and ended prohibition, for instance.
And just because it’s hard to amend the Constitution doesn’t mean there aren’t a lot of ideas floating around for how it could be done. Search “Constitutional amendment” in Congress’s database of actively introduced legislation for the current Congress and 142 official proposals pop up.
Here are some of the highlights:
Balance the budget – Despite the fact that the tax bill Republicans recently passed will explode the federal budget deficit in coming years, there are a large number of Republicans (and a few Democrats) who push a Balanced Budget Amendment every few years. When the proposal has come to a vote, it’s failed, as it did in April of this year, and as it has in years past. That won’t stop it from being introduced against next year. And it won’t stop the national debt from growing after decades of budget deficits. $21,600,000,000,000 and counting.
End the Electoral College – If Democrats have their own dream of constitutional reform, it would probably start with ending the Electoral College, that relic of the late 18th century, which today gives more rural states a leg up in presidential elections. That’s how two of the last three presidents (both Republicans) were elected despite receiving fewer actual votes than the Democrat. With Republicans in control of the House, the Senate, the White House and a majority of state legislatures, that one is going nowhere fast.
End the income tax – Republicans enacted tax reform and Trump wants to cut taxes even more, but Rep. Steve King this year also introduced an amendment to undo the 16th Amendment and get rid of the income tax altogether. That would seem to run counter to the parallel idea of requiring a balanced budget each year, but neither one is gaining much traction.
Control campaign spending – No Supreme Court decision of the last two decades rankles Democrats (and some Republicans) more than Citizens United, which gutted US campaign finance law under the guise of free speech. There are multiple proposals to amend the Constitution to fix it. This midterm election, by the way, will have $5 billion pumped into it.
Enshrine rights to vote and to health care – You don’t actually have a right to vote in the US at the moment. Several amendments refer obliquely to a right to vote, but that right is not actually spelled out like the right to speech or to bear arms is. That makes it easy for lawmakers to abridge voters’ rights whenever they have political support. Think of this as the counterattack to efforts to put obstacles in front of voters like requiring ID. There’s a movement afoot, particularly after the Supreme Court gutted parts of the civil rights era Voting Rights Act, to enshrine a “right to vote” as an amendment.
‘Clarify’ Trump’s pardoning power – Trump has used the power to pardon unlike any other President, handing out clemency as a political favor and to make political points. He hasn’t ruled out pardoning his former aides for possible crimes related to the 2016 campaign. Rep. Al Green has proposed an amendment that would clarify Trump cannot pardon himself.
Equal rights for men and women – A proposed Equal Rights Amendment has been in the works since 1923 and it is re-introduced each year in Congress. It has come closer than most of these proposals to reality. It passed both chambers of Congress in the 1970s, but it didn’t get the required approval in 38 states to be added to the Constitution. Illinois’ vote this year in favor of the amendment brings to 37 the number of states that have signed on, just one shy of that 38 figure. Congress initially set a deadline to pass the amendment and that ran out in 1982, so when supporters find that 38th state, you can bet there will be a fight over whether every state legislature vote is still valid.
Parental rights – This one, introduced by Republicans, would seek to give parents a constitutional right in the education of their child to choose alternatives to public education.
Term limits – The President has a two-term limit as laid out in the 22nd Amendment. There are quite a few lawmakers who run each year on putting term limits in place for themselves, particularly after a 1995 Supreme Court decision that nullified 23 state laws for term limits on their federal lawmakers. This amendment would make congressional term limits for every state. This proposed amendment probably has the most bipartisan support — both Beto O’Rourke and Ted Cruz support it!
Make DC a state – There are a lot of US citizens out there who don’t have the same representation as everyone else. DC and Puerto Rico in particular, have populations commensurate with some states, but no voting member of Congress or senators. DC voters do have their votes counted in presidential elections in the form of three Electoral College votes, but Puerto Rico voters only get their presidential preference counted if they move to a state or DC. DC’s delegate, Eleanor Holmes Norton, introduces the DC Statehood proposal whenever possible. It’s not technically an amendment, but would require the repealing of the 23rd Amendment, which gave DC electoral votes.
Ban flag burning – The Supreme Court has upheld flag burning as free speech protected by the First Amendment. But Congress has routinely considered such a flag-burning amendment, which has passed the House at least four times in the 2000s, but failed in the Senate. It’s notable that Senate Majority Leader Mitch McConnell, a Republican and staunch protector of the First Amendment, is opposed, so it would probably take a different Republican leader to get movement on this.
Reapportion Congress by citizens rather than population – This is another King proposal, which would presumably mean fewer lawmakers in places with fewer non-citizens living there. The sad original text of the Constitution counted slaves as three-fifths of a person for the purposes of apportionment. That language was undone by the same 14th Amendment, which granted birthright citizenship.
There are plenty more of these. Check out the full list at Congress.gov. Similarly, there have been efforts, like the one endorsed by Sen. Marco Rubio and Jeb Bush, to create a new Constitutional Convention to pass some of these all at once — term limits, balanced budget, and reforming the commerce clause to defang the power of the federal government in terms of regulation.
But amending the Constitution ain’t easy: It takes years under the best circumstances, which is why nobody’s been able to do it in 27 years.