Stephen Gottlieb: A 28th Amendment

Apr 30, 2013

I got into a discussion about a proposed 28th Amendment to our Constitution a few days ago. Turns out there's more than one proposal calling itself the 28th Amendment. I'm talking about the one that begins, "The rights protected by the Constitution of the United States are the rights of natural persons only." There may be similar ones. There certainly are some calling themselves the 28th Amendment that address very different subjects and are totally misinformed. But the restriction of constitutional rights to natural persons is worth talking about.

Lawyers are sometimes cursed with awareness of all the problems in a proposal and, initially, I opposed it for technical reasons. More, I wasn't encouraged by the fact that its supporters were unwilling to engage in anything like a rational discussion of its problems.

But I've changed my mind. I've come to the conclusion that the headstrong passion it's supporters possess is good reason to support the proposal. The U.S. Supreme Court clearly overreached in the Citizens United decision in which they held that corporations are entitled to all the free speech rights of natural persons, and that their spending of funds from their corporate treasuries is protected by the First Amendment. The decision has stirred passions that should be unleashed to take this country back from those who believe this country should be run by a government of the plutocrats, by the plutocrats and for the plutocrats.

I'm still skeptical of the second section of the proposal that I've seen, which authorizes restrictions on campaign funds generally - there are many ways that restrictions can be mishandled to guarantee that those in power cannot be challenged effectively. I and many public interest organizations and almost all political scientists would rather see publicly funded campaigns. But both public funds and campaign restrictions can be set so low that incumbents cannot be challenged. So those same supporters would prefer public funding either with optional private funding or in addition to private funding. The mantra in the political science community has been "floors, but not ceilings" on political campaign funds.

That said, bandwagons can be constructive and this one looks like one that will attract people of good will. The Supreme Court has been consistently tilting elections in this country toward their favored candidates, cutting off the counting of ballots and pre-emptively handing the 2000 election to Bush despite a majority of the country who voted for Gore. And the Court has been

·        upholding restrictions on who could vote that were clearly and discriminatorily aimed at Democratic voters,

·        unleashing the power of corporate money in a series of cases leading to and including Citizens United, and

·        doing everything it could to advance the interests of corporations over the people they injure and defraud.

The Occupy movement woke much of the country up. But there is still a great deal of organizing to do to take our country back from the corporate boardrooms and restore democracy in America.

I doubt the proposed 28th Amendment can pass – there are too many states in the grip of the Tea Party. But the battle will rejuvenate the fight for economic justice in this country. May we meet at the barricades.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. 

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