Publius-Huldah's Blog

Understanding the Constitution

The Proposed “28th Amendment”: Another Terrible Idea

The proposed 28th Amendment reads:

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.

1.  Should we support this?  Let’s think it through:  Ours is a Constitution of “enumerated powers” only.  See “Congress’ Enumerated Powers”.

2. The problem is that Congress, the Executive Branch, and the Judicial Branch IGNORE the Constitution.

3. How would an Amendment fix this?  Why would any Branch of the federal government apply any such Amendment the way you think it should be applied?  How could any Amendment MAKE them obey the Constitution, when they don’t obey it now?

4.  The reasons they disobey the Constitution are these:  They want to, and We the People wanted them to.  Social security, Medicare, government grants, programs for farmers, earmarks, etc., are all unconstitutional as outside the scope of the enumerated powers of Congress. But we wanted the handouts – we wanted the pork.  So we didn’t care that what they were doing was unconstitutional.

5.  Now, listen carefully: The proposed 28th Amendment would have the effect of creating a “general” legislative power in Congress.  A “general” legislative power is the opposite of  enumerated powers only.  With the “general” legislative power created by the proposed 28th Amendment, Congress could make any law on any object as long as it applied to them as well as to us.

So, while you might think that the 28th Amendment will “show them” that they can’t pass laws for us and exempt themselves, the actual result of such an Amendment would be to destroy the concept of “enumerated powers” altogether. Plus, they would continue to ignore the Constitution!

6. Amendments to the Constitution are, in general, a really bad idea.  In Federalist No. 84 (10th para), Alexander Hamilton warned against “bills of rights” .  He said that not only are they unnecessary, they are dangerous – for they provide, to those disposed to usurp, a pretext for doing so.  He said:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Hamilton was right.  The U.S. Supreme Court has since used the 1st Amendment, which guarantees free exercise of religion & free speech, to BAN Christian speech in the public square.  See:  The Lie of “Separation of Church and State” & the U.S. Supreme Court’s Usurpations of Power.  See also Citizens United v. Federal Elections Commission (2009) for a history of the Supreme Court’s 1st Amendment jurisprudence respecting political speech!  YES, they have long approved congressional restrictions on political speech!  Reconcile that with the text of the 1st Amendment!  You can’t.

The point is this:  The federal courts will construe any new Amendment however they want!

7. Our Constitution doesn’t need amending except to repeal some of the previous ill-considered Amendments such as the 16th & 17th.  Let’s not blame-shift and say our political problems are due to defects in the Constitution.  The defects are in our own plunder-loving hearts.

8. We fix our political problems by: (a) Learning the Constitution ourselves and, after we have learned it,  teaching it to others; (b) Supporting it and stop clamoring for unconstitutional handouts; (c) Electing people who will be faithful to the Constitution; (d) Demanding that our representatives impeach, try, convict and remove from office all who don’t; and (e) Returning to personal morality and personal responsibility.

March 26, 2010; revised Jan 13, 2018

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March 26, 2010 - Posted by | 28th Amendment


  1. […] article – Term limits: a palliative, not a cure and this article (HJR4) – The Proposed “28th Amendment”: Another Terrible Idea by PH explain why term limits and HJR4 are terrible ideas–they not only won’t solve the […]


    Pingback by cle V Convention Must be Stopped in NH by | | January 15, 2018 | Reply

  2. Reblogged this on Foodforthethinkers's Blog and commented:
    1) Amendments have never restrained Congress.
    2) The American people are more than happy to applaud breaches of the Constitution when either (a) there is $$$ in it for them, (b) Uncle Sam is “going after” somebody else or (c) THEIR president is in office.

    If there was ever a people that got exactly the government they deserved it is America in 2013.


    Comment by Food for the Thinkers | September 24, 2013 | Reply

  3. There is a Sheriff that you may have heard of. Former Sheriff Mack. He has a website as well He may have the only answer to some of this. He is educating all the County Sheriffs about the Constitution and their duty to their oaths. He is telling them NOT to allow Federal agencies to run over the people with their unconstitutional laws nor to let them even enter into their county without notification and if they do they will face arrest by the County Sheriff. He has started a program called “No Sheriff Left Behind.” It is wonderful that he is starting to make a difference! Nullification as you’ve said before, starting with the County Sheriff’s RIGHT and DUTY to uphold the Constitution and NOT to ‘uphold’ the laws that are UNconstitutional!



    Comment by Kali Kale | August 8, 2011 | Reply

    • Kali, you made my day. Thank you! I will check Sheriff Mack’s website out. What you said IS what Sheriffs should be doing. THEY are the highest law enforcement official in their respective Counties. They answer to no one except to the People of their Counties [generally speaking – one would have to check to see if the State Constitutions provide otherwise].
      This is so important. I fear that with the “fusion centers” the federal government is nationalizing the local police and the County sheriffs. They must RESIST such nationalization.
      It is so nice to hear of a public official who is a manly man!


      Comment by Publius/Huldah | August 8, 2011 | Reply


    This is an interesting & excellent analysis of the proposed 28th amendment by one John Lindorfer. Lindorfer’s basic premise is quite correct: We ought to think VERY carefully before we amend the Constitution.

    However, I submit that some of the amendments (e.g., the 13th and portions of the 14th) were sorely needed. When one understands the original intent of the 14th amendment (See Professor Raoul Berger’s masterful work on this which I discuss in my paper on the 14th amendment), the 14th amendment is seen to be a generally needed thing. The southern States were denying to freed slaves basic rights of citizenship! It is the subsequent perversions of that amendment by the federal courts which have caused so much harm to our country.


    Comment by Publius/Huldah | May 11, 2011 | Reply

  5. “I will never understand how people can be so blindly stupid.”

    Because it takes no effort to pursue ignorance.


    Comment by Rich Florida | September 11, 2010 | Reply

    • Maybe laziness really is the prevailing sin of mankind?
      And I’m not asking for any deep thought and analysis here! It’s all self-evident, is it not?


      Comment by Publius/Huldah | September 12, 2010 | Reply

      • Seems obvious to me.

        One chooses to be lazy, chooses to do nothing, chooses to be a victim, expects a free ride and votes for the candidates who promise to provide it.

        There is something fundamentally wrong with our voting process. Once the non-producers figure out how to steal from the producers through the ballot box, the show is over.


        Comment by Rich Florida | September 12, 2010 | Reply

        • That is true. I haven’t had time to research this, but have heard that in times of old, there were qualifications for voting! I specifically remember (from 60 years ago) an issue where only property owners could vote. My parents explained to me that since the matter would raise property taxes, it was proper that only the property owners could vote on it. Made perfect sense to me – and I hadn’t even started first grade! That’s why I say this is all self-evident since even tiny children can grasp it.
          Another fellow about my age (or maybe older) told me that when he first registered to vote, he was interviewed by 3 men who questioned him about (prepare yourself)….. his knowledge of The U.S. Constitution!

          We need to disabuse ourselves of the false notion that everyone should vote. NO! We need literacy tests, tests of the constitution, and a simple Logic test!


          Comment by Publius/Huldah | September 12, 2010 | Reply

          • Agreed.

            The consequence of unqualified drivers is the death of a handful of people.

            The consequence of unqualified voters is the death of a nation and this one has been dying a slow death for a couple of centuries.

            A lot has to be done and time is not on our side.

            Insanity, which is not survival, is probably our greatest obstacle.

            The insane I refer to are the truly evil members of society who make up a very small percentage of the population and appear almost normal. They often find themselves in positions of power and are responsible for upsetting a larger portion of the population who are now undergoing therapy, living in mental institutions, or blowing themselves up.

            Look around the planet and tell me it’s not so.


            Comment by Rich Florida | September 12, 2010

  6. I agree that before we can make any important changes we must revive ethics, competence, and personal responsibility in both our elected representatives as well as ourselves. I have to step up my own efforts in that regard!

    Your essays are so thought-provoking PH, particularly when you point out the unintended consequences of hasty reform. We don’t even enforce the laws that we do have, so there’s no need to make any more at this point. Especially when they conflict with law already in place, beginning with the Constitution.

    One of my pet peeves has been the expansion of the regulatory bureaucracy which, to my mind, usurps the constraints of the Constitution. Due to judicial deference, the agencies are nearly unchecked as the executive, legislative, and judicial powers all reside within its purview as an unrepresentative shadow government. I’m working my way through your essays and if you haven’t written on this subject I would love to hear your thoughts.


    Comment by jetstream | August 8, 2010 | Reply

    • Art. I, §1, US Constitution: “ALL legislative powers herein granted shall be vested in a Congress of the United States,…”

      As you have seen, they don’t know what “all” means. I have posted on the grossly UNconstitutional administrative law state in the Constitution Study Group at Not only is rule-making by executive agencies in violation of Art. I, §1, it destroys altogether the concept of separation of powers. Agencies within the Executive branch make “rules” (which courts say have the force & effect of “law”), they enforce them with their armed hit-squads, and judge them with their hearing officers and administrative law judges. Lawmaking, enforcing, & judging combined in the various executive agencies of the executive branch. It is an abomination. The lawyers don’t question it. I will never understand how people can be so blindly stupid.


      Comment by Publius/Huldah | August 8, 2010 | Reply

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