TCS Daily

The 28th Amendment

By Ryan H. Sager - July 14, 2005 12:00 AM

For some years now, I've been pondering a little amendment to the Constitution. Nothing too grand, mind you. Just a little something that could fit on a cocktail napkin, yet at the same time provide more legal clarity than 100 Sandra Day O'Connor opinions.

And, so, without further ado, here it is, my 28th Amendment:

Amendment XXVIII.

Granted, it would be the first amendment written in all caps. And I'm pretty sure it would be the first use of an exclamation point, let alone three consecutive, in any of our nation's foundational documents ("We mutually pledge to each other our Lives, our Fortunes and our sacred Honor!!!").

But that all seems like a small price to pay when one contemplates just how invaluable the guidance of this simple -- if enthusiastic -- amendment could prove to the High Court.

Take, for instance, the recent decision of the court in the case of Kelo v. New London. There, of course, five justices (Stevens, Souter, Ginsburg, Breyer and Kennedy), ruled that local governments could take people's houses and give them to private developers, so long as the taking was done with a public purpose -- such as expanding a city's tax base -- in mind.

To the justices (under the current, unamended Constitution) this case was quite the tough nut to crack. Private property, according to past court decisions, could already be taken for railroads, for sports stadiums and to do away with "blight."

What principle could guide them? The Constitution was unclear.

"Nor shall private property be taken for public use, without just compensation," reads the end of the Fifth Amendment.

Sure, it sort of seems like the framers might have been saying that "Government is instituted to protect property of every sort ... This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his," as James Madison wrote in 1782. But how could the court be sure?

Similarly, when the court was recently asked to decide whether AIDS and cancer patients could use marijuana for medical purposes -- a plant that was not sold for profit and not transported across state lines -- the justices faced similar confusion. Sure, the Constitution grants Congress power only to "regulate Commerce ... among the several States." And, sure, "powers not delegated to the United States by the Constitution," such as deciding what substances are and are not legal, "are reserved to the States." And, sure, in this case, the states had passed laws specifically granting their citizens the right to possess and consume marijuana with a prescription from a doctor.

But how could the court trust that the founders really meant to set up our federal system the way they did?

And, finally, there was the court's consideration of the McCain-Feingold campaign-finance reforms. There, the court upheld the vast majority of the Bipartisan Campaign Reform Act of 2002, which, among other things, restricted the ability of labor unions and other corporate entities from running ads mentioning the names of candidates for federal office within 30 days of a primary election and 60 days of a general election.

The court's 298-page decision could have been much shorter were it to have read the First Amendment in conjunction with the 28th: "Congress shall make no law ... abridging the freedom of speech ... AND WE MEAN IT!!!"

But, of course, such was not the case.

With only 27 amendments to guide them, the justices of the Supreme Court have been forced to search far and wide for guidance as to how to interpret the Constitution. Some have looked to the writings of our Founding Fathers -- to the Federalist Papers, to Madison's notes from the Constitutional Convention, to handwritten notes passed between Madison and Alexander Hamilton during the Constitutional Convention making fun of Gouverneur Morris' name. Others have looked to France.

It won't matter who President Bush throws on the Supreme Court's jurisprudential dinghy if all nine navigators remain hopelessly adrift, with no North Star to guide them.

A justice who understands the Constitution as written, and who is willing to uphold it no matter the mistakes of past courts and the abuses of the current Congress, would be nice. An exclamation point -- or three -- at the end of the Bill of Rights would be even nicer.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at


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