The constitution is over 200 years old.
We asked tk legal scholars, tk and tk what new
amendments we need to add.
It’s been 50 years* since America’s
last real update to its Constitution. We asked
seven writers and legal scholars
what they think needs amending next.
These essays are part of a series exploring bold ideas to
revitalize and renew the American experiment.
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It’s been 50 years* since
America’s last real
update to its Constitution.
We asked seven
writers and legal scholars
what they think
needs amending next.
These essays are part
of a series exploring bold ideas to
revitalize and renew
the American experiment.
Article I --> By Kate Andrias, a professor at Columbia Law School By Kate Andrias, a professor at
Columbia Law School
Federal law purports to protect the right to unionize, but it does so weakly and only for some workers, excluding the millions who are classified as independent contractors, domestic and agricultural workers and many others, disproportionately women and people of color. Moreover, the law has been eroded by hostile court decisions and anti-union legislation at the state and federal level.
The consequences are dire: Income inequality has soared. Many workers can barely make ends meet. Even more have little control over their everyday lives, with employers able to change schedules at any time and without explanation, to monitor workers’ every move using new technologies and to terminate workers for no reason at all.
The absence of strong unions harms not only the workplace and the economy but also American democracy. Without countervailing organizations of workers, big corporations and the wealthy exercise vastly more influence in politics at every level of government.
Protecting labor rights is key to fixing these problems, and that protection should start with the Constitution.
A constitutional amendment would make clear that the democratically elected branches of government have the power to protect labor rights: Corporations’ property rights or so-called speech rights don’t trump the rights of workers to organize. It would also make clear that labor rights are essential to our society and that all workers, including the growing number in the gig economy, have the right to organize, bargain and strike, free from retaliation. Such a constitutional safeguard wouldn’t just protect workers from their employers; it would protect them from the courts, too.
To be sure, change will require social movement organizing, democratic debate and legislative action. But enshrining labor rights in the Constitution would be a critical step to building the just and democratic society all workers — and all people living in the United States — deserve.
Section 1. All workers shall have the rights to engage in concerted action for purposes of mutual aid or protection; to form and join labor unions; to engage in collective bargaining, including at the work site, firm and sector levels; to picket, strike and boycott, including against secondary employers; and to exercise those rights free from coercion, discrimination or retaliation.
Section 2. Laws or contracts that restrict or impair the rights protected in this article shall be null and void.
Section 3. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Article I --> By Deborah N. Archer, a professor at N.Y.U. School of Law and
the president of the American Civil Liberties Union By Deborah N. Archer, a professor at
N.Y.U. School of Law and the president of the
American Civil Liberties Union
A simple change to the 13th Amendment could eradicate a pillar of white supremacy.
Ratified after the Civil War, the 13th Amendment outlawed slavery with one critical exception: as “a punishment for crime.” In the constitutional amendment that finally freed enslaved people and recognized their full humanity, there should have been no exceptions.
Beyond the importance of making the prohibition of slavery complete and unequivocal, striking the 13th Amendment’s punishment clause would have practical consequences for compulsory prison labor, eliminate a powerful incentive to criminalize Black and brown people and advance the cause of racial and economic justice promised by the amendment.
Racism is central to America. As racist laws are struck from the books, racism has demonstrated a stunning ability to adapt. The end of slavery saw the rise of new tools to exploit Black people. While historians debate whether the punishment clause was included with the continued subjugation of former slaves in mind, it allowed the continuation of penal slavery.
Today, mass incarceration compels inmates to fight deadly fires. It requires them to produce hand sanitizer for the public while they face unsafe and unsanitary conditions. Some argue that these people benefit from gaining work experience. But those benefits do not require subminimum-wage forced labor. By striking the clause, the compensation earned and skills learned can begin to restore the dignity and status of those serving their sentences.
Neither slavery nor involuntary servitude shall exist within the United States or any place subject to their jurisdiction.
Article I --> By Alexandra DeSanctis, a staff writer at National Review and a
visiting fellow at the Ethics and Public Policy Center By Alexandra DeSanctis,
a staff writer at National Review and
a visiting fellow at the
Ethics and Public Policy Center
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Since Thomas Jefferson drafted these words, the United States has made enormous strides in recognizing that all human beings — regardless of race, sex or class — inherently possess the natural rights named in the Declaration of Independence. The 13th Amendment, by ending the dehumanizing evil of slavery, affirmed that Black people, too, possess these rights. We must affirm the truth of Jefferson’s words once again, this time by ending the dehumanizing injustice of abortion and securing the right to life of unborn human beings.
The Supreme Court held in Roe v. Wade that the Constitution protects a right to abortion. But a unique human life begins at the moment of fertilization, which means that every abortion intentionally ends a human life; the court’s decision denied to an entire class of human beings that right upon which all other rights depend.
Unless the court overturns its decades of hazy and unworkable precedent protecting abortion, lawmakers who attempt to safeguard the equality of the unborn will remain unable to do so. Even if the court changes course, without a constitutional amendment explicitly recognizing fetal personhood, states will maintain a maze of abortion laws, some of which will continue to allow abortion.
This amendment would affirm that, like each of us, every unborn human being possesses the intrinsic right to life, while accounting for situations in which a woman might need emergency medical treatment that may have the foreseeable secondary effect of harming her unborn child.
Section 1. The word “person,” as used in the Fifth and 14th Articles of Amendment to the Constitution of the United States, applies to all human beings, including unborn human beings, from the moment of conception, at every stage of biological development, irrespective of age, health, function, gender, race or dependency.
Section 2. Nothing in this Constitution shall be construed as conferring or protecting a right to abortion.
Section 3. This article shall not be construed to prevent emergency procedures in cases in which a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother.
Article I --> By Samuel Moyn, a professor of law and history at Yale By Samuel Moyn, a professor of law
and history at Yale
West Germany’s 1949 Constitution dedicated the country to peace and made international law an “integral part” of domestic law. This was, in part, a penance for just a few years earlier being a dangerous and deadly rogue state.
While the United States today is a far cry from Nazi Germany, it has nonetheless proved itself to be a threat to world peace, blatantly and regularly violating international rules or letting its lawyers twist limits on war into licenses to strike.
An amendment to our Constitution modeled on Germany’s could be a start for America’s atonement, by counseling prudence and placing constraints so the country cannot launch disastrous wars of choice as easily or send drones or special forces practically anywhere for deadly missions. It could also offer protections to Americans as well: While the parents of young Black men killed by police have traveled to speak before the United Nations in Geneva to decry violations of international standards on the streets of our cities, no legal appeal to those standards is possible in our courts.
In fact, what respect American law paid to international law has weakened lately, with conservative Supreme Court justices taking the country even more fully outside international norms by making them ever harder to invoke in our judicial system. Justice Antonin Scalia went so far as to denounce those who invoked such norms as merely examples to consider here.
International law is certainly not a panacea. We could make sure that we never let international law weaken domestic protections when they are stronger. But forcing Americans to take seriously what others think global morality and rules demand would invigorate our discussion — and litigation — about how to exercise power elsewhere and treat one another at home.
In order to promote world peace, and consenting to such limitations on sovereign powers as required, the American people declare that international law is part of our law, directly creating rights and duties for citizens. Acts tending to and undertaken with intent to disturb the peaceful relations among nations shall be unconstitutional and be made a criminal offense. The inviolable and inalienable rights of persons are the basis of peace and justice within and beyond U.S. territory.
Article I --> By Cindy Cohn, the executive director of the Electronic Frontier
Foundation, a digital rights organization By Cindy Cohn, the executive director
of the Electronic Frontier Foundation,
a digital rights organization
The Fourth Amendment, which prohibits “unreasonable searches and seizures,” was written when letters were delivered on horseback and communications, whether stored at home (protected as one’s “castle”) or sent through the mail, had to be searched by hand, one at a time. The contents sealed inside physical letters could reveal much more about a person than the address printed on the outside (the “metadata”), and so only the content received full Fourth Amendment protection.
In our digital age, this amendment has been interpreted in ways that shrink our rights. Today, our most important documents and communications are not typically transmitted by the public postal service or held by us in our homes but are handled by companies like AT&T, Google, Facebook and Slack. These companies also hold our metadata — including not only whom we talk to but also where we are and what we watch and read — which, alone or in aggregation, can reveal information as sensitive as the content of the messages themselves. Police officers no longer need to search our homes and documents one by one; they can go straight to those companies, generally getting content with a warrant but also often doing dragnet digital searches through metadata without a warrant.
Ideally, these privacy violations would be addressed through a fair reading of the current Fourth Amendment, including realigning what’s reasonable with both modern life and international law. But seeking clarification from the Supreme Court is slow, at best. A few tweaks could do a lot to retrofit the Fourth Amendment for our times — and for many years to come.
The right of the people to have privacy and be secure against searches and seizures of their persons, houses, papers and effects, including their data and the metadata created by their actions, shall exist regardless of where located and shall not be violated except through processes that are necessary and proportionate, including by a warrant issued by a judge upon probable cause and supported by oath or affirmation and particularly describing the person or place to be searched and the persons or things to be seized.
--> By Barry P. McDonald, a law professor at Pepperdine University By Barry P. McDonald, a law professor
at Pepperdine University
The framers of the Constitution could not have seen how much the less representative branches of our democratic republic — the executive (elected by nonpopular Electoral College vote) and the judiciary (appointed for life) — would hold a grip on governing power.
This has left Americans engaged in bitter power struggles to control the presidency and Supreme Court.
This structural problem cannot be fixed by one constitutional amendment, but it can be alleviated by a change to the structure of the judiciary: This amendment would return important policy decisions to the people rather than have them decreed by life-appointed judges devising vague constitutional provisions. (On the right, think guns and campaign financing; on the left, abortion and same-sex marriage.) The amendment would create institutional constraints on the Supreme Court designed to foster impartial and restrained decision-making — enforcing the clear commands of the Constitution and leaving debatable issues to the democratic process.
A democracy-enhancing amendment would achieve four goals: increase the size of the Supreme Court, which would make it more difficult for partisan voting blocs to form and require broader decision-making consensus (and create an even number of seats to force compromise, if necessary); reasonably limit terms of justices to increase the frequency of nominations, lower the political heat over them and foster greater judicial modesty; require a supermajority of justices to invalidate laws as unconstitutional; and require that qualified potential justices be appointed from various geographic regions to better reflect the diversity and interests of the American people.
Section 1: The Supreme Court will consist of 16 justices, with a seat added to the court every two years until that number is reached. Seats on the court shall be allocated in a geographically uniform manner across the United States, with such manner to be reasonably determined by Congress.
Section 2: No justice appointed after the adoption of this amendment shall serve more than 15 years. Upon such adoption, sitting justices will serve for no more than 35 years from the date of their appointment to the court.
Section 3: No law shall be declared unconstitutional by the court except by a vote of at least two-thirds of justices participating in a case.
Amendment TK Section TK --> By David Schleicher, a professor at Yale Law School By David Schleicher, a professor
at Yale Law School
America needs to get moving again. Over the past 40 years, Americans have moved from one state or city to another less and less frequently. This lack of mobility — and the lack of population growth in highly productive cities and regions — substantially harms the economy.
Once, local economic booms created boomtowns, but they no longer do. Chicago grew from a city of 30,000 people in 1850 to 1 million in 1890 to 3.3 million in 1930; Silicon Valley’s population has increased only slightly since the rise of the tech sector in the 1980s. Low population mobility makes economic redistribution less effective, since poor people are less likely to be in the same states and cities as rich taxpayers. It also makes the job of the Federal Reserve harder, since setting interest rates is challenging when there are varied levels of unemployment and inflation.
While there are several explanations for declining mobility, one is that state and local laws clearly make it harder for people to move toward opportunity. Zoning regulations limit housing construction in many wealthy cities and regions, raising housing costs and limiting in-migration for those who don’t already have high salaries to take advantage of those strong economies. Land use regulations in the most productive regions have reduced economic output by 36 percent between 1964 and 2009. Occupational licensing regulations cover 25 percent of workers and limit the ability of people to move between states because their licenses do not travel.
The Constitution, through the dormant commerce clause, already bars state laws that discriminate against interstate trade. A new constitutional amendment could bar state and local laws that have the effect of limiting interstate population mobility, freeing the national economy from protectionist and not-in-my-backyard state and local legislation. Such an amendment could be used to invalidate unreasonable land use regulations — such as excessive minimum lot size rules and unjustified density limits — and labor regulations that discriminate in their effects against out-of-state workers.
No state or political subdivision of a state shall pass any laws, regulations or binding judicial decisions that, on their own or in their cumulative effect, substantially limit the capacity of residents of other states, localities or territories — individually, in aggregate or as members of groups or professions or trades — to enter, reside within or work within their borders unless those laws are found to further a substantial government interest other than population control by means that are tailored to achieve that interest.