Thursday Night Bar Fight #5: Brother, Can You Spare an Amendment?

Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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199 Responses

  1. Glyph says:

    Is there any part of this deal where, if we keep an Amendment, we can go back to a more robust form of it?

    Like, the WOD and WOT have pretty much decimated the 4th, so I might as well get rid of it…or can I keep it, with the expectation that we’ll, you know, start following it?Report

    • Tod Kelly in reply to Glyph says:

      You cannot go back and change or reword a current amendment for the next 100 years. If you wish it to be treated differently than it currently is, you have the same options you do now – to elect people that will make it so.Report

    • Glyph in reply to Glyph says:

      I guess I’d go 1, 4, 5, 6, 9Report

      • James Hanley in reply to Glyph says:

        Were you interpreting this as applying just to the Bill of Rights, or are you actually valuing speedy trials over ending slavery (perhaps assuming slavery would not be reinstated in today’s political climate)?Report

        • Glyph in reply to James Hanley says:

          Right, my assumption is that slavery isn’t coming back, and women’s suffrage isn’t going anywhere, barring the kind of apocalyptic conditions that would render all government moot anyway. And it’s more than just “speedy”, you’ve also got “the rights to be notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel” in there, so 6th seems important.Report

  2. Citizen says:

    Does Dillon’s Rule still apply or can each state find usefulness in its own constitution? This is important as preeminence considerably changes my answer.Report

  3. Just Me says:

    I say we just bomb the Dutch and keep the amendments. This is a really interesting proposition! One that needs more consideration than I can give it today.Report

  4. LeeEsq says:

    I’d keep the First Amendement because it creates one of the necessities of our democracy. I’d keep the 5th and the 14th to protect people’s rights and ensure at least theoretical equal justice under the law. I’d also keep the 13th Amendment and one the giving women the right to vote because we have too many reactionaries and I want guarantees against slavery and for female sufferage/equality.Report

    • Glyph in reply to LeeEsq says:

      First is definitely non-negotiable. I debate losing the suffrage and slavery ones, not because I want to deny women equal rights or reinstitute slavery, but because I have a hard time believing we could backslide socially enough to necessitate those Amendments again short of global catastrophe/Mad Max-style scenarios. Am I being too optimistic?Report

  5. I guess it’s kind of a cop out to just keep the 9th?Report

  6. NewDealer says:

    First Amendment: I think we will descend into really bad civil war without guarantees for free speech, press, religion, assembly, and petition.

    Fourth Amendment: While not perfect in application, it is good to require police to get warrants before searching and seizing.

    Fifth Amendment: Due Process is good.

    Sixth Amendment: Criminal defense rights. No Kangaroo courts.

    8th Amendment: No Cruel and Unusual Punishment

    14th Amendment: Incorporation!

    Damn this is really hard because the others are really important as well. Maybe we can live without direct election of Senators. and the one about Congressional salaries.Report

    • Pinky in reply to NewDealer says:

      I’d be happier without the direct election of Senators.Report

      • LeeEsq in reply to Pinky says:

        Why? When the States legislatures elected Senators, the election was very prone to corruption and you usually ended up with Senators who represented corporate interests rather than states. Direct election of Senators isn’t necessarily much of an improvement but at least it helps a little.Report

        • Burt Likko in reply to LeeEsq says:

          And as we’ve seen recently in Illinois, corruption remains a viable concern when the voters are taken out of the selection of Senators even in the present day.

          But Tod’s hypo is designed to force hard choices. I’d be more willing to live with a moderately more corrupt Senate than we have at present so long as that Senate’s powers are restricted by at minimum the First Amendment and an expansive understanding of Due Process.Report

          • LeeEsq in reply to Burt Likko says:

            I realize this, my question is was more general. A lot of people are devoted to both the Electoral College and indirect election of Senators. They feel that the direct election of Senators was a big mistake and that abolishing the Electoral College and having direct election of the Senate was even worse. My problem is that neither the Electoral College or indirect election of Senators worked even close to as envisioned.

            The people who wrote the Constitution believed that the states would elect Electors and that the Electors would decide who would be the best person for President amongst themselves. It didn’t turn out this way from the first real contested election, which gave us our current system of Electors just nominating who ever got the most votes in their states. The indirect election of Senators never worked as envisioned either. So why the devotion?Report

        • Pinky in reply to LeeEsq says:

          I think the 17th Amendment solved some problems but created some others. The old system was prone to corruption, but it also gave the states more direct say in the federal government. The passage of the 17th Amendment and the expansion of the federal government (in particular, relative to the states) occurred at the same time, and it’s reasonable to conclude that there was some causation.

          It’s true that state governments can be corrupt. An imperial governor or a rogue state house can get away with murder. But they’re also more directly accountable to the voter, especially the state representative. Thus the Senate was closer to the voter than the House. The citizen had probably met the person who was going to choose the senator. Now, the Senate is the to the House as college is to high school, a place for the more successful career politicians.Report

          • LeeEsq in reply to Pinky says:

            Do you have any evidence that the old system giving the states more of a say
            beyond Southern Senators defending slavery or Jim Crow. The good senators always acted as super Representatives. The bad ones as representatives for the corporations. People wanted direct election for a reason.Report

    • Burt Likko in reply to NewDealer says:

      As I see it, the choice comes down to picking five of the six NewDealer articulated. I’d miss most of the rest, but IMO we can live without them. If there is any way we can squeeze six amendments into our budget instead of five, we’ll deal with the awkward manner of selecting the Vice President and the long lame duck period and potential third-term Presidents and voter eligibility through the political process. After all, the chances that in today’s day and age voting rights would be formally restricted on the basis of sex are pretty low.

      Also IMO, the controversial part of that statement is my failure to include the Second Amendment in that list. But I think we can rely on the political process at this point to protect gun ownership rights until 2113 when we get the rest of our Amendments back.

      If I have to prioritize these six top-priority Amendments, First, Fifth, and Fourteenth stay for sure. The reason is the plethora of rights guaranteed by the First, and the Due Process clauses in the Fifth and Fourteenth. With Due Process, we can maybe back-door some semblance of what we lost out of hock to the Dutch — but it takes a willingness by judicial conservatives to embrace the notion of substantive due process.Report

  7. Pinky says:

    1, 8, and 13 seem non-negotiable for a civilized society. There are a lot of good ones in the Bill of Rights that have accumulated some wacky case law, so as much as I’d like to hold onto the ones involving search and seizure, double jeopardy, et cetera, we could probably function as a society without them for 100 years. I’d like to see the 9th and 10th in action, but we don’t even pay any attention to them today.

    About a hundred years ago, the Turkish government slaughtered everyone in my grandfather’s village and wiped it off the map. I’m keeping the 2nd Amendment.

    That leaves me with one slot, and it’s got to be either the 15th (voting rights regardless of race) or the 19th (voting rights regardless of sex). I’m going to guess that over the next 100 years it’s more likely that the rights of the 15th will be jeopardized than the rights of the 19th.

    Final: 1, 2, 8, 13, 15Report

    • Burt Likko in reply to Pinky says:

      What are the chances we’d go back on the Thirteenth?

      And we aren’t losing our history in hock to the Dutch, just portions of our law. Again, I think the notion of Due Process saves the possibility of a functional prohibition of slavery or involuntary servitude — especially if we save the Fourteenth, to make sure that a State can’t deprive someone of their liberty without affording them due process of law first.Report

      • Pinky in reply to Burt Likko says:

        It wouldn’t happen overnight. Or maybe it would – prison labor, unpaid internships, migrant workers, there are probably a lot of things that could slide into involuntary servitude. But I think that the First, Eighth, and Thirteenth are the admission price into civilization, and I can’t count support for them as wasting a vote.

        I’m no lawyer, but from what I understand, there’s so much contradictory, counter-intuitive garbage that’s been built up around the Fifth and Fourteenth Amendments – like incorporation, and substantive due process – that we’d be better off starting fresh. I’m sure there are some great elements within them that I’m unaware of, and it’d shock me to see us without them, but I suspect that we could stumble into something more coherent on our own.Report

  8. Kazzy says:

    1, 4, 6, 14, 15

    Government Procedural ones are useless. They have their pros and cons. If they are the best way to do things, they’ll largely stay; if not, new ones with new pros and cons will emerge.

    I chose the ones I did by balancing the threat each one reasonably faces and the breadth of impact. Quartering soldiers would really suck but I see little chance that is pursued for practical reasons. Gun rights might dissolve and while I believe in them, they are low on the totem poll and a militia is unlikely to be necessary for any reason. Etc, etc, getting me to where I am.

    Disclaimer: I don’t understand most of the amendments.Report

  9. Marchmaine says:

    Five of the original Bill of Rights? Or five of everything? If the latter, how did the Dutch manage to pull off the future leasing rights of something that didn’t exist?

    Assuming Bill of Rights, I’d option to buy:
    1, 4, 5,6 and 10.

    More interestingly… I’d sacrifice the right to bear arms because I suspect we would still have access to plenty of arms… it need not be a “right.” I live on a farm, so billeting soldiers would only help… no supper without chores. Cruel and Unusual without a definition is no right at all (same for rights not enumerated). And, I’ll keep #10 in the vain hope that any sort of Polity must agree to change what it considers a right, lest it degenerate into a mere democracy.Report

    • Burt Likko in reply to Marchmaine says:

      I think that your point about the Eighth Amendment is telling, Marchmaine, and you may have solved my dilemma of which one of the six indispensible amendments we can actually do away with by raising that point.

      The Eighth Amendment prohibits excessive fines and excessive bail in addition to cruel and unusual punishment. But “excessive” is just as squishy a term as “cruel and unusual.” And if we’re willing to take the Due Process Clauses seriously, we can incorporate the notions of reasonable bail and punishments that are proportionate to their corresponding crimes into the notion of what is part of “Due Process.”Report

      • Marchmaine in reply to Burt Likko says:

        Agreed… I’m not sure I’ve seen a non-excessive bail. Bail is really Parole with an edge; absent any notion of violating one’s Parole as a shunnable offense, it is just a matter of setting a price on your head for bounty hunters.Report

    • James Hanley in reply to Marchmaine says:

      how did the Dutch manage to pull off the future leasing rights of something that didn’t exist?

      You’re not familiar with the futures market on constitutional amendments?Report

  10. Shelley says:

    Losing the second would help a lot in reducing the “righteousness” component of the current debate.Report

  11. Jason Kuznicki says:

    Having these amendments is a profitable thing in the long term, so if it’s cash that we lack… well, things are about to get really ugly.

    That said, I pick the First, Fourth, Ninth, Thirteenth, and Fourteenth.

    How on earth would the justices interpret the remaining constitution? As to fundamental rights, and if they wished to avoid complete and total chaos — which I trust that they would — they would have little choice but to pretend that all the others still existed. They would rule accordingly. And not all that much would change.

    Note that our presidential elections would be lots of fun, and possibly a better deal all around than the current setup.Report

    • Jason Kuznicki in reply to Jason Kuznicki says:

      I might add that removing the Fifth amendment, while not something I would ever advocate in ordinary circumstances, would still considerably bolster the case against the death penalty. For that, it would do some good.

      The Fifth mentions the death penalty by name, which has been used in argument before the Supreme Court as a reason why the Constitution does not consider capital punishment cruel and unusual.Report

    • Could we envision a situation like President Obama and Vice President Romney? Or would the entenchment of our two-party system still tend to result in Pres. and VP of the same party? (I suspect the latter, but I do not know for sure.)Report

  12. Plinko says:

    1, 4, 6, 7, 13.

    In some ways, I agree with Jason above but with a very opposite upshot. I’m happy to ditch all the purported limitations on Federal Procedural powers because they’re barely being followed in practice, if at all.Report

  13. Jaybird says:

    1st, 2nd, 9th, 10th, 18th.

    I’d like the option of a local governing body that actually shows up when you’ve been paying protection.Report

  14. Patrick Cahalan says:

    You need at least seven.Report

    • George Turner in reply to Patrick Cahalan says:

      Yes, and possibly more.

      Many are needed because they still see constant use in limiting politicians tendencies to become “rulers” or do “what’s best for us.”

      The First is still essential in battling attempts to regulate (restrict) the Internet, campaign donations, talk radio, churches, and protest marches.

      The Second is under daily assault from the usual suspects and defending a right that is politically unpopular in many quarters. Unpopular rights are the ones that need protection from government. The Founders had seen how aristocrats see fit to use the law to disarm the people they oppress, and that tendency is still very much alive.

      The Fourth is the last barrier left against the warrantless wiretaps, government seizures, GPS tracking, and surveillance state that anti-terrorist paranoia has brought about. Without it the government would roll right over the top of us with new “sensible X” legislation.

      The Fifth is under constant asasult, from imminent domain (see Kelo), to using a variety of federal laws to retry unpopular suspects who don’t get convicted at the state level.

      The rights guaranteed by the Sixth, Seventh, and Eighth wouldn’t last much longer than the first really unpopular defendant to dominate the cable news cycle.

      The 14th is needed, if for nothing else, for incorporating the rest of the rights at the state level.

      The 22nd (only two terms for a Presidernt) is needed because Congressmen occassionally want to repeal it.

      And the Ninth and Tenth are sometimes useful in stopping really bad ideas.Report

    • “You need at least seven.”

      Hey, I don’t make the rules…Report

  15. Burt Likko says:

    In several places above, I’ve commented on the importance of the Due Process clauses. That’s because I’m including not only procedural due process but also substantive due process as part of the jurisprudence based on those retained Amendments, which we could use to salvage the fundamental rights we lose along with the 23 amendments we must give up in the hypo.

    Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. [Reno v.] Flores, [507 U.S. 292,] 302 [(1993)]; Collins [v. Harker Heights, 503 U.S. 115,] 125 [(1992)]; Cruzan [v. Director, Missouri Dept. of Health, 497 U.S. 261], 277-278 [(1990)]. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U. S., at 302.

    Washington v. Glucksberg, 520 U.S. 702, 720-721 (1997) (some internal citations omitted and edited).

    On the strength of this concept (which was not first iterated in Washington v. Glucksberg, although I’ve always like Chief Justice Rehnquist’s cogent restatement of it in that case) I think the Due Process Clauses can really take us a long way to making do without other formal amendments.Report

    • zic in reply to Burt Likko says:

      I’m going to go with whatever Burt says is best, because I trust him to look after his smiling wife (and so women, too) with his whole heart.

      Short of Burt’s complete list, 1, 4, 6, 14 and 19; and I reserve the right to revise.Report

      • Burt Likko in reply to zic says:

        I trust him to look after his smiling wife (and so women, too) with his whole heart.

        Bet the house on it.Report

      • Pub Editor in reply to zic says:

        Thank you, zic, for mentioning the 19th. (I think you were the first to do so in this thread.)

        I like Burt’s idea of the 14th Amendment subtantive due process, procedural due process, and equal protection clauses doing more work to make up for other missing amendments. Likewise with the cruel & unusual clause in the 8th.

        I wonder if the habeas corpus clause in Article IV (not an amendment) could likewise be made to do more work, in which case we might be able to do without parts of 4 and 5.

        Also, Burt makes a point of focusing on rights where we see a reasonable likelihood of retrogression. So *maybe* we could do without the 19th amendment, if we thought it unlikely that a government where women already have the franchise would vote to disenfranchise women. On the other hand, definitely gotta keep the First.

        At last count, 44 state constitutions have state equivalents of the 2nd Amendment, so we might be OK without the 2nd, even aside from the practical limitations on trying to disarm Americans of their millions of firearms in private possession.Report

        • Burt Likko in reply to Pub Editor says:

          The P&I Clause in the 14th could be revived and repurposed, too, doing much of the same work I contemplate for substantive due process.

          Interesting idea about expanding habeas corpus. That would inflate the Great Writ beyond its original scope, but that might not be a bad thing, especially while those damn Dutch hold our Amendments until you and I have long been in the grave.Report

        • Jason Kuznicki in reply to Pub Editor says:

          I am very doubtful that there would be an organized or successful movement to repeal women’s suffrage in any case. Voting qualifications are generally handled at the state level anyway, with only a few high-profile exceptions, and state constitutions very often go further than the federal one in protecting gender equality. So there is little danger there.

          Then again, I suppose it’s possible to apply that logic to the Thirteenth as well. But given the allusions to slavery in the original document, removing all doubt may be the safest course. A difficult question.Report

      • Pub Editor in reply to zic says:

        Oops, Pinky mentioned the 19th at 12:43 pm:

        That leaves me with one slot, and it’s got to be either the 15th (voting rights regardless of race) or the 19th (voting rights regardless of sex). I’m going to guess that over the next 100 years it’s more likely that the rights of the 15th will be jeopardized than the rights of the 19th.Report

    • Patrick Cahalan in reply to Burt Likko says:

      This was my first gut impulse, too.Report

    • Fnord in reply to Burt Likko says:

      Even procedural due process is vital.

      Without procedural due process, the 6th is useless. Yeah, it provides for protections if you’re a defendant in a criminal trial. But that’s only relevant if they’re giving you a trial in the first place. Without procedural due process, the 6th only applies when the authorities want it to apply.Report

  16. Mike Schilling says:

    Without the 12th, we have a complete mess, as well as far too much incentive for frivolous impeachment (and assassination.)Report

    • If, under the baseline procedure, each member of the EC still casts 2 ballots, and given the entrenched position of the two political parties, are you so sure that we would frequently get President and VP of different parties? A bunch of Jefferson-Burr scenarios seems more likely (imho).Report

      • James Hanley in reply to Pub Editor says:

        I doubt it. That happened primarily because nobody had really imagined it happening, so they hadn’t planned for it. Now, knowing of the danger, each campaign and party would likely–and pretty easily–organize their electors so as to avoid the problem.Report

      • Mike Schilling in reply to Pub Editor says:

        Right, I’d forgotten they had two each (I was thinking 1796 with Adams-Jefferson, not 1800 with Jefferson-Burr). Never mind.Report

    • James Hanley in reply to Mike Schilling says:

      We need more frivolous impeachments. Impeachment has become an almost useless tool in the congressional armament against executive aggrandizement, seen as a nuclear option instead of something to be employed more regularly. More frequent frivolous impeachments might warn presidents to watch their step.Report

  17. Todd Morris says:

    1st, 4th, 5th, 6th, and 14th. Like some others above, the biggest decision for me was between the 6th and the 8th. I did find it interesting that it really wasn’t all that hard to discount most of the amendments beyond the original bill of rights. I think this is mainly due to cultural shifts, that wouldn’t make them necessary in 2013 … nobody is going to try to reimpose slavery, or say that women can’t vote.

    Really, the only amendment that’s absolutely non-negotiable is the 1st; as without it we might be having this conversation at all.Report

  18. Damon says:

    All amendments have been effectively nullified by the various forms of gov’t and the defacto concurrance of the population.

    Return them all and maybe we’ll get a credit?Report

  19. Russell M says:


    first because well.. I like to talk. and I want everybody to be able to talk. 4th and 5th so we can maybe still stich together a functioning legal system. 15th because i think those are the voting rights I see as most likely to be infringed on. and 16th because without income tax we do not have any government to speak of. no way to pay for all our stuff with only tariffs.Report

    • Pub Editor in reply to Russell M says:

      16th because without income tax we do not have any government to speak of. no way to pay for all our stuff with only tariffs.

      Bug or feature?Report

    • Brandon Berg in reply to Russell M says:

      16th because without income tax we do not have any government to speak of. no way to pay for all our stuff with only tariffs.

      Fun fact: The US had a government only for a few years during the 19th century.Report

      • Russell M in reply to Brandon Berg says:

        yeah because we are going to disband 90% of the standing army, stop nearly every gov function outside of cursury border patrol and signing treaties. try to come close to paying for the gov majorities say they want without the income tax. In a way that ensures that you have a lifespan of more than 5 seconds should the mob find you.Report

  20. Pub Editor says:

    Thankfully, no one has included 18 on their lists (so far).Report

    • Burt Likko in reply to Pub Editor says:

      Nor the Sixteenth. Although in its absence a new way of paying for the Federal government would need to be found.

      Perhaps that would be a good debate to have anyway…Report

      • Plinko in reply to Burt Likko says:

        Is it possible one does not need the 16th if some combination of other amendments are dropped (ie I dropped 9 and 10, would that essentially obviate the 16th?).

        Alternatively, it’s entirely possible for the Federal Government to fund itself solely via a VAT, I suspect there would be a way to structure such a tax so as to qualify under the current Constitution even without the 16th.Report

      • LeeEsq in reply to Burt Likko says:

        Oh damn it your right, I forgot about the income tax. Thats an important but not necessary one to keep since I don’t think that an amendment really was necessary to give Congress the ability to tax income but for the Supreme Court being political and stupid. I think that most post-New Deal Supreme Courts, even very conservative ones, are going to find that Congress can tax income without an amendment.

        Before the 16th Amendment pased, most of the Federal government was funded by excise taxes on alcohol. I’m assume that it will be similar if the income tax were to disappear. We might get tolls on interstates and taxes on internet porn.Report

      • Russell M in reply to Burt Likko says:

        well I mentioned the 16th. I like taxes.Report

    • George Turner in reply to Pub Editor says:

      The problem with the 18th is that it’s such an oddball that restricts the people’s rights and expands government powers, instead of the other way around.

      BTW, one snag in this exercise concerns some of the procedural amendments. If they’re not kept, does the post assume we have to default back to the Constitution’s original procedure or do we just go along as if the amendment’s tweaks can be left in?Report

      • No I’m pretty sure the point of the hypo is that we go back to the original incarnation of the Electoral College, the one that led us to the Jefferson-Burr problem in 1800 and could have resulted in 2008 with an Obama-McCain Administration… or maybe Biden-Obama. We’d need to create practical workarounds for that.Report

        • Pub Editor in reply to Burt Likko says:

          As I understand it, in the original sceme, each elector casts two ballots, which must be for two different candidates. In the election of 1800, the Federalist party plan was for all of their EC members to case one ballot for Adams; then all Federalist EC members would also cast a second ballot for Pickering, except that one designated elector would case his second ballot for John Jay, avoiding a tie between Adams and Pickering.

          Of course, the Dem-Repub Party had no such plan, which is why we got the mess we did. But I am just saying that proper coordination among the EC members beforehand can avoid a Jefferson-Burr or Obama-Biden tie.Report

        • For starters, we could have federal anti-dueling law.Report

      • George Turner in reply to George Turner says:

        Instead of a practical workaround, I’m sure they’d just roll the text of all 27 amendments (maybe without the 18th and 22nd) into a single package, with each individual historical amendment redefined as a clause or section. “I’d like to assert my right against self-incrimination as guaranteed with clause 5 of The Amendment.”

        Of course that kind of defeats this exercise in picking which amendments to keep.Report

    • Jaybird in reply to Pub Editor says:

      Technically, I included it in mine above.Report

    • KatherineMW in reply to Pub Editor says:

      I considered the 18th before deciding I didn’t want to waste a vote on trolling. Just because it would screw you all over so thoroughly.

      Or else produce the legalization of marajuana (and possibly other drugs) as alternatives.Report

    • Mike Schilling in reply to Pub Editor says:

      I was considering 21, just to be on the safe side.Report

  21. Recovered Republican says:

    Polyamory is WRONG.

    It should be multiamory or polyphilia.

    Have your relationship the way you want, just don’t mix greek and latin roots, that’s terrible.Report

  22. John Howard Griffin says:

    Keep the 2nd and get rid of all the other ones. Eventually, the reading/interpretation of the 2nd would expand, since it would be our only protected right.

    Then, maybe we would kill enough of each other that another species (or several) might get a chance sooner, rather than later. And maybe that other species won’t screw things up as much as we have.

    Shorter JHG: when is the GRB scheduled to arrive?Report

  23. James Hanley says:

    1, 4, 5, 13, 14.Report

    • Michael Drew in reply to James Hanley says:

      +1 on the idea that, despite the fact that slavery would almost certainly not come back into being, simply the act of choosing to allow the 13th to go off the books could actually be a massively destabilizing act for society, even beyond symbolism. A similar argument could be made vis-a-vis the 19th, I would think, though. It probably says something about me or society or something that I think (agree?) that the consequences would probably be more limited if it were allowed to go.Report

      • Michael Drew in reply to Michael Drew says:

        …Perhaps people would be more comfortable trusting that the value enunciated by 19th could be thought to be implied by the 14th &/or others in combination, while choosing to let the prohibition on slavery go by the wayside is more of an affirmative disavowal of the society’s rejection of that institution?Report

        • James Hanley in reply to Michael Drew says:

          That’s my guess. It’s also why I left out the 15th; not that I don’t value either, but if something indispensable has to get cut, then cut the indispensable ones that have some prospect of being extrapolatable (if that’s a word) from other indispensable ones.Report

          • Michael Drew in reply to James Hanley says:

            Yes, quite. And like Mark says below, there’s no way to put in 15 and not 19 or vice versa and come out making any sense or not looking bigoted (or in any case making an assertion about the significance of sexism vis-a-vis racism that you’re not looking to make). So all of a sudden you’re using 2/5ths of your amendments as basically symbolic gestures to protect things that aren’t going anywhere. I am sympathetic to those arguing for 23, and I think I would be swayed if it protected the vote from political tampering more comprehensively than just from explicit poll taxes.

            I’m interested in your thoughts on 4-5-6 that you share with Mark. I don’t have the experience to know which of the criminal process protections might be most likely to survive repeal of which of these amendments, whether through practice or via changed interpretation of other amendments that are kept. In terms of the language, however, I find myself more drawn to the comprehensive listing of processes to which we are entitled in the 6th han to the descriptively open protection against unreasonable searches in the 4th. I’m not really sure it’s a coincidence that the 4th has been largely hollowed out in practice. It think it’s poorly drafted.Report

  24. Dan Miller says:

    1, 4, 5, 6, 14. This was a really tough question–in particular, leaving out the 16th makes society vulnerable to a Norquist lawsuit, but I suppose I’ll have to hold out hope that the justices will see the light on that one. I dearly wanted to keep the 15th as well, but maybe in a hundred years we can replace it with an all-purpose guaranteed right to vote.Report

    • Brandon Berg in reply to Dan Miller says:

      There’s no light to see. Without the Sixteenth Amendment, the Constitution explicitly disallows the sort of income tax we have now. Direct taxes have to be levied in porportion to the population of the states, so tax rates could only rise as high as could be supported by the poorest state on a per-capita basis.Report

      • Plinko in reply to Brandon Berg says:

        I’m pretty sure without a 10th, the 16th is unnecessary.Report

        • Brandon Berg in reply to Plinko says:

          First, the tenth amendment is redundant. It puts no restrictions on the federal government that aren’t already implied by the Constitution sans amendments. Second, this this isn’t one of those “Congress can’t do it because the Constitution doesn’t explicitly say it can” things, like Social Security or the War on Drugs. It’s spelled out explicitly:

          Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers


          No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.Report

  25. Ugh – the intertubes ate my full explanation for my answer, which is the 1st, 4th, 5th, 6th, and 14th.

    The short version is that the 14th is the single most important one and can be used to incorporate a lot of what we’re giving up thanks to substantive due process and equal protection. We need the 4th and 5th to protect against arbitrary prosecutions; since they impose affirmative obligations on the government they’re not likely to be incorporated as fundamental rights under the 14th without being explicitly spelled out. This is largely true of the 6th as well, except that much of the 6th is arguably implied by the 4th and 5th.

    The 1st is the most important negative liberty and, even though free speech generally would be incorporated as a fundamental right under the 14th, the comparatively absolutist interpretation that our courts have always practiced probably would not be so incorporated.

    However, under a non-absolutist interpretation of the First, we’d probably be like most other English-speaking nations, which wouldn’t be the end of the world, even if the absolutist interpretation is one of the things I most love about this country and that makes this country what it is.

    Far more intolerable would be the loss of the 15th and 19th, which are very much a package deal in my view, and even just a subtle rollback of the 15th and 19th is difficult for me to find tolerable. However, there is at least a good argument that the 15th and 19th are implied by the Equal Protection clause (although we need to recognize that the 19th didn’t pass until 50+ years after the 14th), and politically I can’t imagine there ever being the will to explicitly repeal the franchise for women or racial minorities. I can, however, envision the subtle repeal of those protections, since that is essentially what is happening right now with the whole voter ID thing. I think it necessary to stop that subtle repeal if possible. I just don’t think it’s possible – it seems likely to me that SCOTUS is going to find the VRA unconstitutional and Voter ID laws constitutional this term, effectively determining that facially neutral but discriminatory-as-applied voting laws are allowable under the 15th Amendment. If it does so, as I expect it will, these two amendments will largely cease to be relevant – there will be no political will to explicitly violate their terms regardless of their enshrinement in the Constitution, and subtle violation of their terms will be constitutional in spite of their enshrinement in the Constitution.Report

    • James Hanley in reply to Mark Thompson says:

      Lots of folks are mentioning the 6th, but couldn’t due process be interpreted to cover that stuff?Report

      • For the most part, yes. I would have let it go if it weren’t for the fact that I viewed the 15th and 19th as a package deal – I couldn’t come up with a rationale that made sense to me for keeping one of those two but not the other; doing so would have, in my view, created a substantial risk of being interpreted as express authorization to attack the voting rights of whichever group’s amendment got eliminated. It’s one thing to say the 15th and 19th are no longer needed as bars to explicit attacks on the franchise or, if you’re keeping them, that they are so needed; it’s quite another to say that one is still needed, but the other is not.

        Of the other amendments that I think ought to be viewed as worthy of consideration, the 9th has either been neutered or rendered duplicative of the 14th; the 2nd has too many drawbacks and would have a decent chance of being at least partially incorporated under the 14th in any event; the 8th is readily protected by the 14th in much the same form as it currently exists; the 13th is, to my knowledge, pretty fully codified in statutory law, especially under a modern understanding of the commerce clause; there’s no reason the 16th couldn’t be replaced with a creative indirect tax that raised substantially the same amount of revenue; and the 24th suffers from many of the same problems as the 15th and 19th.Report

        • cfpete in reply to Mark Thompson says:

          Don’t you need the 6th for the Assistance of Counsel Clause?Report

          • Burt Likko in reply to cfpete says:

            I suppose that we could back door assistance of counsel in to Due Process. What you might not get is a jury. Which frees up a slot for the all-important Eleventh Amendment — no more Chisholm v. Georgias!

            Now that I think about it, if we’re subsuming all the protections into the notion of Due Process, we need only keep the First, Fifth, and Fourteenth. As I’ve argued elsewhere that given current culture and current extension of the franchise (bear in mind that the franchise for women and racial minorities might also be considered a “liberty interest” which requires individualized due process before it can be taken away), it’s unlikely that the slavery ban or women’s suffrage are in actual jeopardy, maybe we should use those remaining two slots to protect the integrity of the political process.

            To that end, have you considered the Twenty-Fourth Amendment? Poll taxes are obnoxious to the notion of a self-governing citizenry. And after some recent stunts pulled by members of a certain political party which shall go unnamed in certain states, combined with current revenue shortfalls (we don’t even have enough spare money to save our Constitution from going in to hock, in this hypo) I can see poll taxes being used to the dual purpose of raising revenue and cutting “undesirables” out of the electorate.

            Using the last slot for the Ninth Amendment as a catchall might also be wise, particularly given that I’m advocating for a much more active judiciary engaged in a robust interpretation of the Constitution as a rights-guaranteeing instrument of high law.Report

            • Jaybird in reply to Burt Likko says:

              From the horse’s mouth itself: If you wish it to be treated differently than it currently is, you have the same options you do now – to elect people that will make it so.

              With that in mind, I don’t know that keeping any of the Amendments will matter.

              Might as well just keep the 3rd, 15th, 19th, 24th, and 26th. We’ve no problem keeping those.Report

              • Burt Likko in reply to Jaybird says:

                I’m not sure I follow the “horse’s mouth” portion of your comment, Jay, because I don’t think I was suggesting that every problem can be effectively solved by the waving of a hand and saying “Go exercise your franchise and live with it if you lose.” Perhaps I misunderstand you.

                But your basic point is correct — if elected officials and civil servants behaved themselves, we’d have no need of fundamental laws restraining their behavior. If men were angels, there would be no need of government. Men are not angels. Elected officials pass laws, often with popular support, that trample on the rights of unpopular minorities. Civil servants do abuse their authority.

                Thus, we need good restraints on the exercise of governmental power, and courts placed beyond the reach of political reprisals and armed with sufficient power to control those sorts of abuses.Report

              • Jaybird in reply to Burt Likko says:

                The horse, in this case, is RTod. Up above, he was asked about “if we keep a particular amendment, does that mean we’ll follow it this time?”

                That’s what he said in response.Report

              • Burt Likko in reply to Jaybird says:

                Ah. I get it now.

                And that’s correct too — if the courts (in particular SCOTUS) aren’t willing to interpret meaning into the Constitution, then the political branches are going to respond to that by saying their power isn’t limited by it, and it’s all so much ink and paper and not really a government anymore. Witness, e.g., the Ninth Amendment and the Privileges and Immunities Clause.Report

              • ” If men were angels, there would be no need of government”

                Unless they were fallen angels.Report

            • Alan Scott in reply to Burt Likko says:

              I was going to comment sharply if nobody had mentioned the 24th by the end of the thread. Given how many people are keen to champion voting rights via the 15th and 19th, It’d be a shame if we left out the one franchise-guaranteeing amendment whose absence someone might get away with exploiting in our more tolerant century.Report

              • Kazzy in reply to Alan Scott says:

                I believe Mike S, or someone, brought it up and used the example of voter ID laws (“$1000 each with a rebate for GOPers!”). It’s a hard one to let go, no doubt…Report

        • Pinky in reply to Mark Thompson says:

          My thinking on this was that we could do without the 19th but not the 15th. Some state might try to disenfranchise 5% of its population for some reason, but no state is going to disenfranchise 50%.Report

  26. Shazbot3 says:

    1st: No brainer

    7th: I have a right to sue for money because I am American.

    14th: A weapon against the Republicans in important battles.

    16th: Gov’t needs income tax.

    23rd: Just in case anyone passes a law or amendment banning alcohol, even 100 years from now, I want this amendment in my back pocket, because I am an American and love booze.Report

  27. Pub Editor says:

    4, 8, 15, 16, 23, 42Report

  28. Christopher Carr says:

    My top five are: I, XIII, X, V, and VI.

    The full ranking, in order or importance:

    I. speech, religion, press, assembly, petition (that’s really like five amendments right there)

    XIII. Ummm, no slaves (unless you’re a dick or lose a bet)

    X. The Federal Government is hereby granted the right to carry out drone strikes on American citizens even though it currently has no plans to do so.

    V. = VI. No star courts or kangaroo chambers; no Kafka

    VIII. no “cruel and unusual” or “excessive” punishment (whatever that means)

    IV no “unreasonable” searches and seizures (whatever that means), warrants and such. These are more like “guidelines” than “laws”, right?

    XIV. Let’s be nice now okay. We mean all that stuff above. Really.

    XV. Oh, and now everyone is allowed to choose some turd sandwich to carry out drone strikes against us. Unless you’re a woman. XIX. Okay, ladies, you can vote too. Help us choose between these two rich white males. XXIV. See, what we wrote above, we really did mean that. XXVI. Now you can help decide what foreign country you die in.

    XI. People from Texas can’t force my kids to learn creationism in school.

    XXV. This one may actually save the Republic someday. Let’s hope it never comes to that.

    IX. some other stuff we forgot to say

    III. protection against forced quartering of soldiers during peacetime (a lot of modifiers there. This amendment is almost toothless.)

    XVI. You have the right to give us your money.

    VII. certain civil cases must be decided by twelve idiots instead of one smart person.

    XXIII. D.C. finally gets to choose its very own Mr. Burns.

    XXII. We’d all be better off if this one had been repealed around 1999.

    XXVII. Quasi-pointless political gesturing. Ironic, even. (I actually kind of like this one for its irony.)

    XVII. Our dumb system is now your responsibility.

    XII. Let’s replace one dumb system with another.

    XX. Let’s elaborate on some of our dumb system’s least important attributes.

    XVIII. XXI. Let’s do something dumb for a while and then correct our mistake. (XXI would actually be higher in a purely symbolic ranking if it seemed like we’d actually learned anything from the experience.)

    II. Armed bearsReport

  29. Shazbot3 says:

    I kind of think the 7th all alone could do a lot of work done by the other amendments, if you could only keep a few amendments. If you always have the right to sue the government for damages, if they jail or punish you without trial, you (or your family) could sue the crud out of them, and the judiciary could even make the government continue to pay (even punitive damages) until they proved that your actions really were unlawful.

    Maybe I know nothing about the 7th, but it could be a heck of a weapon if read broadly enough to allow you to sue the government in a trial by your peers.Report

    • Christopher Carr in reply to Shazbot3 says:

      It could also be a hell of a weapon in the hands of a tyrannical majority.Report

    • Burt Likko in reply to Shazbot3 says:

      If you always have the right to sue the government for damages, if they jail or punish you without trial, you (or your family) could sue the crud out of them, and the judiciary could even make the government continue to pay (even punitive damages) until they proved that your actions really were unlawful.

      Sounds like late republican Rome.Report

  30. Boegiboe says:

    1, 9, 10, 14, 26
    Given a generous reading of the 9th combined with the 14th, most of the protection parts of the Bill of Rights could be legislated. The 26th makes the women’s suffrage amendment moot, and the 1st lays out the basis upon which our free society has been based. And of course, as long as the Federal government is told what it can’t do by the 10th, it doesn’t much matter how exactly it’s elected.Report

  31. KatherineMW says:

    Well, the 1st, 4th and 6th definitely need to be kept. Just as definitively, the 2nd and 3rd can be dropped; the third is obsolete, the second is fairly so (national defense no longer being militia-based; the amendment dates from a time when standing armies were anathema to all freedom-loving men), and basically every other stable democracy in the world has managed to stay democratic without a constitutional right to bear arms.

    Very hard to narrow down which the last two should be. I think I’d have to go with the 14th (because of equal protection, and Constitutional rights applying to state governments) and the 16th (because there may actually be enough people in the US crazy enough to render government non-function on libertarian and constitutional grounds without it).

    Which means I have to trust to the decency of the citizens of the United States for the 15th and 19th to stay upheld in principle even if no longer enshrined in the constitution. The 14th should implicitly cover the 15th anyway. I’m assuming inertia and habit would keep direct election of Senators around.

    A lot of the more recent ones are bookkeeping.

    So: 1, 4, 6, 14, 16.Report

  32. Pyre says:

    The Second amendment. Since I have to choose 5, I would also choose the 16th, 18th, 23rd, and 27th.

    The day after this goes into effect, point out publicly that Washington D.C. has retained the ability to keep their salaries, their positions, and their ability to tax while stripping us of our booze and stripping women and minorities of the right to vote.

    7 hours later (10 if executions are drawn out), start drawing up plans for a new government. I’m thinking a regional confederation with a severely limited central government would suit us better than our current system of government and would probably give us another 237 years.Report

    • Russell M in reply to Pyre says:

      If only we had an example of such a government. perhaps some sort confederation of american states. perhaps we could also codify the new rules by placing some long-form essays about how to run such a union into print.

      Or we could just have the Nytimes run a series of articles about co-operation and rely on good will to keep us a nation.(note when the nation collapses I call dibs on Colorado. you will have to come to me if you want to ski and then I will have you all)Report

      • Pyre in reply to Russell M says:

        First off, the basic argument is that the government somehow sold off our constitutional rights. That doesn’t strike me as a government that’s fixable.

        Second, who says the nation would stay together? Look at how many people are saying “Well, I’d knock off the 13th amendment” Ignoring the “white privilege” arguments as well as the “we wouldn’t backslide” arguments, can you imagine the ****storm that would happen if you did repeal it? I’m sure that Adria Richards wouldn’t mind speaking to everyone here about how well people listen to your side when you unleash that sort of ****storm. That was just for snapping a guy’s picture and getting them fired. Telling the black community “Yeah, we’re rescinding the 13th but don’t worry. You can trust our mostly white government and your local police to keep us from backsliding.” doesn’t sound like the type of thing that would avert “Oh, the country’s on fire” level of violence.

        And the 19th? Here’s a thought experiment. After you repeal said amendment, ask yourself if the next thing you’d hear from your significant other is “No, no, I understand. It had to be done. ….. How about you just go upstairs and go to sleep?”

        Actually, that might be the best way to approach said question. Instead of assuming that we wouldn’t backslide (and, given how many comments are focused on the second, you can bet others would be willing to backslide on what you feel is appropriate), presume the worst.

        Want to knock off the 22nd? We would have kept electing Reagan until he was dead. How about 3 or 4 GWB terms?

        Want to knock off the 13th? Imagine yourself being teleported to the middle of Harlem and having only your wit to defend yourself and your position.

        The hell with the 16th? Yeah, good luck being the sucker who has to convince people to establish a tax to replace it.

        At any point in these scenarios, you are relying on the goodwill of the people to not decide “to hell with the union” In any realistic scenario that involves cutting the amendments down to 5, the best you’re really going to be able to hope for is to guide the inevitable breakup. I figure, if we’re going to tear the bandage off, I’d rather do it quick so we can get to the process of rebuilding.Report

        • Russell M in reply to Pyre says:

          If you think the only thing holding the country together is a strict constitutional straightjacket, i think you are off your rocker. I may become froth at the mouth angry whenever Paul Ryan commences to make sweet innocent words into dirty rotten scoudrels with the naked dishonesty, but only i get to hit my brother. still family. like a drunken uncle or a trouble prone cousin my opposite numbers can be fun at parties and we still share the idea that america can be the shining city on the hill.

          different visions of the hill itself of course.Report

          • Pyre in reply to Russell M says:

            “Or we could just have the Nytimes run a series of articles about co-operation and rely on good will to keep us a nation.(note when the nation collapses I call dibs on Colorado. you will have to come to me if you want to ski and then I will have you all)”

            “If you think the only thing holding the country together is a strict constitutional straightjacket, i think you are off your rocker.”

            Another problem with this topic is that people keep making the argument “we just keep these amendments and dump the rest because we’re too civilized to backslide”. Well, if we’re too civilized to backslide, why do we need any of the amendments?

            Same thing here. Either the bonds that keep us together as a country are strong enough that a change in government wouldn’t tear us apart or they’re too weak to survive the massive change in government that losing 22 amendments plus voiding all of the case law that has been established using said amendments would entail. Given the general behavior of the various party faithfuls (most definitely including the League), I veer towards the “too weak”. If you want to run with the family analogy, we’d turn into one of those families that get together every so often to discuss things like highways and common defense but would otherwise be perfectly happy attending to their own affairs.

            So which is it? Are the bonds strong enough to stick together through a massive change in government or weak enough that we would veer more towards what would be a (hopefully) amicable regional co-existence after said change in government?Report

  33. Michael Cain says:

    1, 5, 9, 12, 14.

    The 1st because it’s the foundation: we can write (and publish), speak publicly, assemble, and petition. The 5th because I agree with Burt that keeping due process intact can cover a lot of ground. The 9th because I want a statement that the people have rights beyond those enumerated, particularly since we’re striking a bunch of the enumeration. The 12th because the procedure we get without it broke down almost immediately. The 14th so the states are bound to the same rules.

    A considerable amount of the rest can simply be put in federal statute: no slavery, no denying voting rights, warrants are required, etc, etc. If we get to a situation where enough people believe that slavery should be legal to get it passed, well, we would undoubtedly be having other more pressing problems (the Mad Max scenarios others have mentioned). I’d actually prefer to see the income tax replaced with a progressive consumption tax, arguing that spending beyond some level is voluntary and is therefore not a direct tax. Not a sales tax, because that’s hard to make progressive; but the IRS already collects almost enough information to calculate consumption = income + savings withdrawals – savings deposits. Yeah, it needs to be more complex than that to handle credit, but we’ll manage something.Report

  34. Michael Drew says:

    I, V, VI, XIII, XIVReport

  35. BlaiseP says:

    Ecch, I think we could do without a Constitution at all. The UK manages fine without one.

    The American constitution is a complete botch. If I had to use a working model for another, I’d start with the German Grundgesetz, helpfully translated in to English under the link.Report

    • Shazbot3 in reply to BlaiseP says:

      Yeah, this is all true, even if it is pooping on this particular Bar Fight.

      That’s why I like the 6th or the 7th. As long as everyone has access to law suits and trials, the courts will create a tradition that protects the rest of your rights. (Probably.) And the judiciary can check the legislative and executive.Report

  36. Turgid Jacobian says:

    1: Conscience, information, association.
    4-6: anti-Star chamber provisions. Anti police-state.
    14: equal protection, incorporation.

    The rest are at this point optional to maintaining most things. We might have serious trouble without the 16th.Report

  37. Mike Schilling says:

    Let’s eliminate:

    2. is a bad idea badly punctuated.
    3 is such a dead letter than the GWOT didn’t even bother to run roughshod over it.
    6 supposedly guarantees speedy trials. Uh-huh.
    7, if I’m reading it right, prevents appeals courts from overturning obvious miscarriages of justice (e.g. Don Siegleman), To hell with it.
    8 Doesn’t stop the kind of over-charging that drove Aaron Swarz to suicide.
    No one knows what 9 and 10 mean. 11 too.
    We can do without 12.
    No 13. I don’t see slavery coming back.
    14 is needed for incorporation, though the next order of business will be to amend it to say “Corporations aren’t people!”
    15 is useless, since it can’t protect the VRA.
    No 16; we can do a VAT, or better yet a wealth instead of an income tax (which would require a different amendment).
    18 and 21 cancel each other out.
    No one is serious about taking away women’s votes. No 19.
    I was going to say that lame ducks can’t start wars, so repealing 20 is a good thing, but then I recalled Bush I and Somalia. Still, it’s not crucial.
    22. I’d be fine with three or four Obama terms.
    23. Who told them to live in DC, anyway? If you want to vote, live in Alexandria and commute.
    24. Who’d re-introduce poll taxes these days? Right, them. We need 24, or the IDs would cost $1K (special discount when you register GOP.).
    25. We’ve muddled through with brain-dead presidents before.
    26. And the first thing they diod was re-elect Nixon.
    27. They can pass immediate tax cuts that cost billions but giving themselves a 25K raise has to wait for two years.

    So, I make it 1, 4, 5, 14, and 24.Report

  38. Kazzy says:


    Are you going to do a summation of these? Perhaps draft a Constitution based on our votes here?Report

  39. Nob Akimoto says:

    Would it be cheating to say the 4th, 5th, 9th, 13th and 14th…

    Then petition the EU to let the US siign the European Convention on Human Rights and have it ratified by the Senate. (Hey if the Dutch are repossessing the amendments, they can at least let the US into the Eurozone).

    The amendments named above fill in the holes that are present in the ECHR.Report

    • Jaybird in reply to Nob Akimoto says:

      If Germany doesn’t bail us out, we’ll kick their butts a third time!Report

    • Kazzy in reply to Nob Akimoto says:

      The European Convention on Human Rights didn’t ban slavery…?Report

      • Nob Akimoto in reply to Kazzy says:

        Article 4 of the ECHR is a bit…iffy on the wording:

        “ Article 4 – Prohibition of slavery and forced labour
        1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term “forced or compulsory labour” shall not include:
        a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
        b. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
        c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
        d. any work or service which forms part of normal civic obligations.


        • Kazzy in reply to Nob Akimoto says:

          Thanks. And to clarify, my question was meant to show my shock/surprise, not disagreement. I had no idea such a document existed and, upon learning about it, would have been shocked if it said nothing on slavery (especially given the real issues with sexual slavery that certain areas of Europe face).Report

        • Brandon Berg in reply to Nob Akimoto says:

          So forced labor is okay, as long as it’s for the government. Awesome.Report

          • James Hanley in reply to Brandon Berg says:

            It’s not theft when the gov’t takes you money, so it’s not slavery when the government forces you into labor. Remember, you belong to the state and to society. You are not your own. If you want to be your own, go move someplace where there are no other people. Don’t go where even one other person is, because then you’ll have a society and you’ll belong to it…that is, to each other.

            Only a FYIGM libertarian could dispute that logic.Report

          • Fnord in reply to Brandon Berg says:

            It’s not like the 13th amendment stopped the draft here.Report

  40. Kazzy says:

    Shit… Duh… Save the 23rd… and ONLY the 23rd…

    DC uses its Electoral Votes. Everyone leaves. Government ceases to be. No amendments necessary. Libertopia ensues.Report

  41. Brandon Berg says:

    I’d go with:
    I. Freedom of unpopular speech is unpopular enough that there’s a legitimate need to keep this one. See the left-wing response to Citizens United, for example.
    IV-VI. Other than I, these are the amendments that most restrain government in practice.
    XIV. Incorporation and equal protection are nice, but the real reason I’m keeping this one is so that Zombie Jefferson Davis is never elected president.

    If I could get one more, I’d go with XXII, for protection against Zombie Franklin Delano Roosevelt. Or maybe VIII. VIII is cool.

    I hate to lose II, but I think the courts has been willing enough to ignore it when convenient that it’s a less significant impediment to gun control than popular sentiment. III made the classic mistake of guarding against the tyrannical government we just overthrew instead of the tyrannical government we just created. IX and X are nice in theory, but redundant and nevertheless routinely ignored by the farce that is the USSC. XI is a double-edged sword.

    XII, XX, and XXV are boring. XIII, XV, XIX, XXI, XXIV, and XXVI have sunken deep enough into the culture that the amendments themselves are superfluous. XXIII is dubious for public choice reasons. XVI-XVIII are a regrettable product of a time when heroin was used to treat the common cold. I love a “Fish You, Congress!” amendment as much as the next guy, but XXVII just doesn’t make the cut.Report

  42. Russell M says:

    any other american who read and commented feel a twinge of odd feeling about cut and pasting the Constitution?

    I did not realize how deeply I have absorbed the Mythos of our founding.Report

  43. Alan Scott says:

    At this point, adding my list to the thread would just be copying what others have said more eloquently. So instead, here’s a list of what I’d be happy to see go:

    18: The fact that I’m drinking a beer as I’m writing this should tell you why.

    21: That beer I’m drinking? You wouldn’t be able to find a domestically produced beer like it even 20 years ago. It’s easy to remember that the 21st amendment repealed prohibition, in section one. But section two specifically allows for the regulation or prohibition of alcohol by the individual states. Alcohol is subject to a variety of ridiculous special requirements at the state and federal levels that dwarf those applied to most consumer products, and the 21st amendment is partially to blame. With the 18th already out of the picture, those awful secondary clauses need to go.

    14: Not all of it, of course. It’s on everybody else’s “keep” list for a good reason. But I’d be happy to see that bit that allows those guilty of “rebellion, or other crime” denied the franchise disappear. Despite that clause, the union did not see fit to deny the ballot to most of those men who had donned gray tunics and taken up arms against it. Today we’ll take away your right to vote because you were caught with a few ounces of weed.

    10: Because we live in one big country, not fifty little ones. Sovereign States is one of those things like having the top two electoral college choices become president and vice president, or legislative appointment of senators, than has never worked out very well in practice. An extra level of government is an extra chance for the government to make your life more miserable and an extra thing in the way of actual government problem-solving.

    2: Because even pro-gun-ownership people don’t really think it’s a right. As I discuss here, just as real freedom of speech only happens when we grant it to those who might speak against us, the right to bear arms only happens when we arm those who might shoot us. If we aren’t willing to extend gun rights to criminals and the mentally ill, then they’re really just privileges we feel strongly about. Once half the nation stops pretending that guns were given by god to Adam, hopefully we can sit down and have a meaningful an much-needed conversation about how to balance the right to own potentially dangerous but potentially useful property and the right to not get shot.Report

  44. Christopher Carr says:

    By the way, is that Barry Soetoro there striking out the Bill of Rights?Report

  45. Jeff No-Last-Name says:

    I’m surprised (and happy) to see so little support for the 2nd. It really is a ghastly amendment, especially in wording, even if you agree with it philosophicly.

    I think that, perhaps with only 5 amendments, each would be considered important enough to be taken more seriously. One can hope.Report