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Draft FT-24-02
As Eric Foner observed, the Reconstruction Amendments heralded a “second founding” of our nation. Righting the wrongs of slavery. Rebalancing the division of Federal and State powers to better match the aspirations of a growing nation. Making clear that personal actions have political and legal consequences.
Yet the promise of the 14th Amendment stalled during Jim Crow, and its broadest aspirations remain unfulfilled. In the last few decades novel, disingenuous threats have emerged. We are at a unique moment in history, and it’s time to clarify the 14th’s intent and renew its spirit, as this v2 proposal and Explainer makes clear:
XIV v2 Amendment
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within ten years from the date of its submission by the Congress. States may not rescind an affirmative vote:
Section 1
All elected or civil officers of the Federal government, excepting the President who is temporarily immune during their term in office, are subject to the regular rule of law for activities outside their direct responsibilities of office.
All elected or civil officers of the Federal government are immune from prosecution for those activities directly a responsibility of office.
“Direct responsibilities of Office” may be defined by statute. In active legal disputes over the scope of “Direct responsibilities of Office” a thirteen-member council consisting of six randomly selected federal judges, two appointees of the President, two by the Senate and three by the House shall be empaneled as an appellate court to provide a legally binding definition in that dispute, consistent with constitutional law and the fundamental principles of democracy. A new council will be selected in June of every even-numbered year.
Section 2
For all elected or civil officers of the Federal government, impeachment is replaced by a vote of No-confidence.
Insurrection shall be defined by statute, and the political consequence for insurrection shall be a Section 2 No-confidence proceeding.
A petition signed by 55% of Congress opens a no-confidence investigation, while a 2/3rds vote of Congress is necessary to carry the motion. Anonymous petitions are acceptable for this purpose.
The sole remedy for a no-confidence finding is an immediate and irrevocable twenty-year ban from serving in any governmental position. Double jeopardy does not attach. Only one no-confidence motion may be brought against the same individual in a year’s span. No-confidence motions may be brought up to five years after that individual’s government service has ended.
Section 3
The president may not self-pardon.
Section 4
Children under the age of 18 where at least one parent is an American citizen, including by birth, naturalization or statute, are automatically full American citizens by birthright.
As of midnight Washington DC of the day this amendment is ratified, birth on American soil or under its jurisdiction is no longer qualification for American citizenship.
Only persons who have attained the age of thirty-five years and have been fifteen years a resident within the United States and an American citizen for twenty years shall be eligible to serve in the Office of President.
Section 5
No state shall make or enforce any law which abridges any of the civil and political Federal privileges and immunities which citizens of the United States enjoy under this constitution.
Section 6
The Congress shall have power and the duty to enforce, by appropriate legislation, the provisions of this article.
XIV v2 EXPLAINER:
Like the First and Fourteenth Amendment, this proposed Article embraces an omnibus of related topics. Some elements may not appeal in their entirety to any one partisan clique, but together they represent a democratic compromise, balanced in favor of good government. Similar to our Constitution, which satisfied neither large or small states, planter nor merchant, the secret to progress is a tradeoff between interests. Divided into separate amendments, they will not pass through our polarized gauntlet.
The style of this amendment is “long-form”, in contrast to the many terse amendments we suffer under today (note: verbose amendments are standard in other modern democracies).
Why long-form?
Predictability in society and the law is a virtue, yet after 250 years we still cannot agree on the meaning of the terse and awkwardly written 2nd Amendment, nor reconcile the conflict between the “regulating and exercising” of a religion of the 1st. While some may argue this elasticity is a virtue- allowing each generation an opportunity to reanimate dry legal skeletons in their own image- in fact brevity has led to inaction, uncertainty, divisiveness, and pointless debates over original meaning.
Preamble Explainer– The ten-year window and rescission are linked conditions. A long or open-ended ratification window justifies recission, as one generation should not bind another to an unknown future. But within a ten-year window, threats of rescission could be used by a legislature to hold the nation hostage. So, our first compromise.
Section 1 Explainer- As this section makes clear no one is above the law, yet we cannot allow State or Federal officials to manipulate the law to harass or intimidate officers of the Federal government in pursuit of their legal duties. Otherwise, a state could throw a sitting President in jail for unpaid parking tickets, or face frivolous civil suits. Conversely, if federal officers break a law unrelated to their official duties, they cannot hide behind a shield of federal immunity. Accepting bribes to ignore water pollution would fall outside any rational statute defining acceptable government responsibilities. A line must be drawn in the sand.
The only exception to this rule is the President– unlike other officials who can be easily replaced or put on leave, the entire Executive Branch is embodied in one person elected nationally. Only the President is immune from prosecution for these acts while in office (though still may face legal action at the conclusion of their term). If those acts are egregious enough, then a Section 2 No-confidence vote would toss them from office into the hands of the justice system, immediately ending their temporary immunity.
Clearly defining the boundary between official and unofficial actions is essential. Statutes to that effect should be passed and oaths and affidavits taken (though under “may”, statutes are not required, leaving the tribunal to rule in the absence of specific guidance from the legislature). Supreme Court jurisdiction is limited to its traditional role balancing one amendment against other constitutional provisions.
Thus, we propose an independent panel to draw the line. While our 1789 Constitution did not grant independent panels an important legal role, subsequent to the Founding these panels have emerged in state and international constitutions as a best-practice for numerous essential democratic tasks (though one might view the Supreme Court as a prime example of a quasi-independent panel).
We assume the Military justice system handles their own cases, but senior civilian officers like the Secretaries of Defense, Navy, etc are subject to this Amendment.
Section 2 Explainer- The Impeachment process was broken from the very founding. It relied on the virtue and independence of Congress to act as a fair judge and jury, but with the rise of political parties, party loyalty is often placed above constitutional duty. In effect, the judge and jury are often members of the same crime family, and the “fix” is in. Nor do “High Crimes and Misdemeanors” function as an effective bar against mere political theater. Not only do we argue endlessly over the definition of this restriction, but when we impeach a sitting President for lying to Congress about a sexual liaison, “High Crimes and Misdemeanors” is merely a textural pretext.
Thus, we turn from “Impeachment” to a vote of “No-confidence”, and let the political system decide. Impeachment in the House and a Trial in the Senate are replaced by a single motion to investigate and debate (using all the tools of a trial), with the House and Senate seated as a unified tribunal. A single tribunal moderates the ability of either legislature to block an investigation for political or self-serving reasons. A petition process is used to prevent political leadership in either chamber from blocking a no-confidence vote. The option of an anonymous petition might allow individual members to break rank without retribution.
For the last 83 Congresses (since 1857), in 60% of the sessions a single party controlled more than 55% of the legislators. Voting along party lines, that party could independently trigger a no-confidence investigation. Only 10% of the time did one party control more than the 66% of the votes required to convict- primarily under Jackson and Franklin within the penumbra of a national crisis. No Congress has (yet) leveraged the impeachment process to eliminate all political competition (e.g. convicting a President and VP of the other party to favor the Speaker of their own as President- a democratic coup) but this remains a risk when demagogues taking office are willing to elevate personal power above democratic norms.
The 14th Amendment’s Insurrection Clause is also ambiguous and mired in anachronistic concerns over reintegrating southern sympathizers. In v2, Insurrection transitions into a statutory definition with aligned civil penalties- political penalties are limited to a vote of no-confidence.
Banning future service in “Governmental Positions” is broader than “elected or appointed offices”, in order to prevent shadow influence from within the bureaucracy.
Section 3 Explainer– Included for absence of doubt. Such is our present condition that we feel obligated to clarify that pardons do not extend to benefiting from your own crime.
Section 4 Explainer– This section updates the Constitution to treat naturalized citizens on par with birthright citizens. Naturalized citizens are as patriotic and loyal to their adopted country as birthright (if not more so) – they are deserving of similar rights, including holding the presidency. Again, for absence of doubt, three non-exhaustive examples of qualifying citizenship paths are enumerated.
Section 4 also eliminates “jus soli” citizenship. There is no question jus soli was a simple and elegant means to return citizenship rights to former slaves after the Civil War, but is now widely viewed as contributing to illegal immigration. The definition of “natural-born citizen” also remains unsettled. Moreover, compared to naturalization, the accident of geographic birth is a low bar for citizenship. Comprehensive immigration reform should be paired with this change to ease the transition.
The qualifications for Presidency remain aligned to its original Constitutional principles- basically assuming a citizen who spent at least 15 years in the country understands our culture, and at 35 has a long enough track record and sufficient maturity for voters to weigh their credentials. Then it is up to the electorate to decide. More complex standards requiring certification (such as mental health, intelligence or litmus tests like religion or absence of previous criminal convictions) are unduly limiting or too easily manipulated by hidden interests. Also note a Speaker who ascends to President under the Succession Acts would have to meet the same qualifications (e.g. to “serve”).
Section 5 Explainer- The Supreme Court punted when faced with incorporating Federal Privileges and Immunities to the States under the Fourteenth. Many of these protections are fundamental and inalienable – addressing this miscarriage of justice is long overdue. Our division into states is a matter of representative convenience and a historic reality, while our rights should be universal. Democracy demands universal incorporation.
Section 6 Explainer– Clarifies that this amendment conveys power to the Federal government for statutory implementation and enforcement. States may expand rights beyond these minimums. We added a new phrase, the “duty”, to this amendment to emphasize that Congress cannot drag its feet on implementation.
Note: Section 4 of the 14th Amendment regarding the validity of the public debt also deserves updating, but belongs in a new amendment concerning fiscal issues, like taxing authority and balanced budget.