Robbins: A 28th Amendment? Don’t bet on it
Love him or hate him — and there seems to be little, if anything, in between — one thing that can’t be denied is that the current president has been a norm-breaker. For some, this has been manna from a benevolent god; to others, the president has been an obstruction in their bowels. Either way, the president is headed for the exits leaving — depending upon your particular mindset — either a phosphorescent wake or an unkempt mess.
One among many things that folks are left to cipher over is whether, in order to contain the next wildly unconventional president (should we see one in our lifetimes), a few bumpers should be constructed. In particular, political pundits, legal scholars, and bent-armed barstool philosophers have pondered if certain presidential norms should be ensconced within the holy firmament of the Constitution.
Should we kick around the thought of a 28th Amendment which would — among other things — require those who follow the current president to release his/her tax returns, forbid them from running businesses that receive payments from foreigners, and prohibit them from pardoning their campaign operatives, their families, or themselves? Notwithstanding that we may all be exhausted by this presidency, this list itself, of course, is not exhaustive.
This would not be the first time in our collective history that our Spanx has chafed over an over-reaching president. In 1951, the reign of FDR, who was canonized in his day, was rethought at least in part, with the adoption of the 22nd Amendment.
If you know your history, our first chief executive, George Washington, was hoisted to the presidency by acclimation. When his first term was up, he was huzzahed into a second term. When that term was nearing its end and a crown of perpetuality was proposed to be hoisted on his head, “American Fabius” said, “Nah, not so quick boys.”
OK, that wasn’t precisely what he said but what he did say was, “Prudence on my part must arrest any attempt of the well meant, but mistaken views of my friends, to introduce me again into the Chair of Government.” In other words, two terms were enough; democracy would not thrive if a president were the equivalent of a king.
In the wake of the Depression World War II, Franklin Roosevelt broke that mold, but when he died in office, months into his fourth term, the nation sat up straight.
“Should we,” the nation asked itself, “impress into the Constitution the precedent that Washington established and pass a constitutional amendment making two-and-out the law?” After a bit of cogitating, the nation said “indeed” and in 1951— six years after FDR’s death — the 22nd Amendment was enacted to that end.
Getting to No. 28
As you may have sussed out by the title of this column, at present we have 27 constitutional amendments. The first, which guarantees the rights to free expression and religion, was adopted along with amendments 2 through 9 in 1791. The last of which, so far at least — the 27th was ratified in 1992 and limited Congressional pay.
Alrightly then. What if we now wished to enact another constitutional amendment? What exactly would that take?
Here’s the skinny …
Article V of the Constitution itself establishes the two ways in which it may be amended. Article V prescribes that amendments may be proposed either by the U.S. Congress or by a constitutional convention when and if demanded by two-thirds of the legislatures of the states.
Employing the first method, a constitutional amendment may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution. To be approved, the amending resolution must be passed by a two-thirds super majority vote in both the House and the Senate. Given no official role in the amendment process under Article V, the president is not required to sign or otherwise approve the amending resolution.
If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification.” Congress will have specified one of two ways by which the states should consider ratification: Either the governor will submit the amendment to the state legislature for its consideration; or the governor must convene a state ratifying convention.
If the amendment is ratified by three-fourths of the state legislatures or ratifying conventions, it becomes part of the Constitution. According to the Supreme Court, which has weighed in on the issue, ratification must be completed within “some reasonable time.”
The second method is if two-thirds of the state legislatures vote to demand it, Congress would be required to convene a full constitutional convention. Just as in the convention of 1787, delegates from every state would attend this “Article V Convention” for the purpose of proposing one or more amendments. Although this more extreme method has never been deployed, the number of states voting to demand a constitutional amending convention has come close on several occasions.
Would either of these ever happen? Well, yeah, it has happened to conclusion 27 times before.
Would, however, a 28th Amendment be teed up in the aftermath of the Trump presidency? Who knows, but I suspect not. The more likely course will be to simply put the past behind us.
There are enough real problems in these challenging times that I doubt the collective will exists for what would surely prove distraction. And although the president has no formal role in the amendment process, incoming President Biden has already signaled his lack of appetite to reprise the perceived failings of the last administration. Time to get to work has been his mantra; at least for now, a 28th Amendment seems an unlikely bullet point on the agenda.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, "How to Raise a Shark (an apocryphal tale)" and "The Stone Minder’s Daughter," are currently available at Amazon.com.
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