Tuesday, August 24, 2010


For the umpteenth time, somebody sent me an email trumpeting something called “the 28th amendment.”

One of the emails even suggested that I am supporting or promoting it.

Not so.

Well, not exactly.

I’m all in favor of amending the United States Constitution. In fact, I have been working very hard to organize an amendatory convention on the Internet.

And I certainly agree that something has to be done to rein in a Congress which seems to think it has the right to spend the public treasury on whatever it wants, including benefits for the Representatives and Senators themselves.

But the email that is going around is full of misconceptions and misinformation.

First, the number of Governors who are suing the Federal Government over the Health Care Bill has nothing to do with a convention or any constitutional amendment.

Article V of the U.S. Constitution requires Congress to call a convention for proposing amendments when requested by the legislatures of two-thirds of the States. That’s 34 States, not 38 as claimed in the email.

The convention would not be a constitutional convention. A constitutional convention writes a constitution. That’s not what an Article V convention does.

An Article V convention is an amendatory convention. Article V speaks about amendments to THIS constitution. It does not authorize or contemplate a new or different constitution.

Which brings me to the actual language of the so-called 28th amendment, being circulated by so many well meaning Americans. It says:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”

The first part sounds pretty good. But does it refer only to laws that apply to all citizens or to any law that applies to any citizens?

I suppose it was intended to mean that Members of Congress couldn’t exempt themselves from Social Security taxes or from military conscription. But doesn’t it also say that members of Congress must receive food stamps, and every other entitlement that any citizen gets?

The second part makes no sense either.

If members of Congress must do for all citizens whatever they do for themselves, it follows that they must pay every citizen a Congressional salary, currently $174,000 a year, and provide every citizen with whatever else members provide for themselves, such as an office in Washington, D.C.

The writing of a constitutional amendment is not something that can be done by somebody sitting at his kitchen table. It requires thought, study, and careful examination by lots of different pairs of eyes.

After all, the Constitution and its amendments are the supreme law of the land. They must say what they mean and mean what they say.

Which is why I insist that an Article V convention is needed. Not just a single purpose, one-time gathering to push a particular amendment, but rather an ongoing, permanent institution which will run every idea for constitutional change through a meat grinder of critical thought and debate, so that whatever ultimately goes to the states to be ratified is worthy of the support and approval of all Americans.

In the words of George Washington, it must be the “Explicit and authentic act of the whole people.”


  1. Under an Article V convention, each state may choose its own path as it relates to each Amendment?

  2. An Article V convention is a gathering of the people of the states.

    Each state chooses its own delegates, instructs them and can recall them.

    Because it takes two thirds of the states -34- to call a convention, it would take 34 states to do business.

    Thus 34 states is a quorum.

    Without a quorum, the only thing the remaining states can do is try to get a quorum.

    August 25, 2010 4:45 AM

    Posted to THE 28TH AMENDMENT
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    Remove forever? (It can't be undone.)

  3. Oddly, this movement comes from a desire to have the same health care that Congress gets - or to force Congress into the same healthcare coverage that the people get.

    The ironic point is that the Health Insurance Exchanges enacted as part of the Patient Protection Act do just that. They set up an insurance exchange that is similar in kind and scope to the Federal Employee Health Benefits Plan, which is the primary carrier for Congress.

    Now Congress also has a supplemental clinic for members and staff, which is an expansion of the clinic where I went when I was an intern. It was built after some crazy tried to shoot his way into the Capitol building to take out Delay. It is all the more essential because Congress mandated that the local hospital, DC General, which was 2 minutes away and had an excellent trauma center, be closed because it was losing money.

    There is nothing in law that prevents any citizen who falls ill in the Capitol from being taken to that clinic, nor is there anything preventing any employer from setting up an in-house facility and hiring doctors to treat staff. Indeed, it is a good idea.

    I doubt, however, that people want to mandate such employer-based care. The 28th Amendment would mandate that they do so, however. It would not mandate that the government do so, since the Congressional plan, though subsidized, is optional.

    A permanent convention is an interesting idea, however for Congress to buy it the 34 states that want it must also command a majority of the membership of the House, since the House has plenary power to administer the amendment process at both ends (the issues are not justicable). One party would have to have that kind of dominance to pull it off - it could not be a "small state revolution." Indeed, if you look at many of the small states (Rhode Island, Vermont, Delaware, Maine, Hawaii, New Mexico, Maryland, Wisconsin) the prospects for a permanent convention start sinking unless you truly find some bipartisan issues.

  4. Judge Brennan,

    Could an Article V convention process be jump started through ballot initiatives of 34 states, or a mix of initiative driven States and State legislatures that were not "forced" by initiative?

    John Hurd
    Arkansas Capt

  5. Initiative petition drives in all fifty states would be an enormous undertaking. Convention USA is an attempt to recruit citizens of every state in a concerted effort to get an Article V convention. It may be the jump start you are advocating.