Shortly after I moved to California, about a dozen years ago, I was driving on one of the megahighways out here and I had the bejeezus scared out me. I was doing about 75 on a road with eight lanes going in each direction when a couple of motorcycles zoomed through the gap between my car and the car next to me.
It’s called “lane splitting”. And it was perfectly legal. Well, that’s not quite true. Allow me to explain.
What I experienced has been happening in California for, well, forever. I imagine it first happened when someone riding a horse forced himself between a couple slow-moving stagecoaches. But I can’t verify that.
I was told that lane splitting was to help keep air-cooled motorcycles from overheating in slow traffic. The reason that motorcyclists could lane split in California was because the California Highway Patrol (a.k.a “CHIPs”) couldn’t enforce a law that they wouldn’t enforce on themselves.
But that’s not the real story.
What really happened was that the CHIPs were citing lane splitting people for reckless driving. But there was no law saying lane splitting was reckless. And the CHP is a law enforcement agency, not a lawmaking body.
So, lane splitting was legal because of the simple fact that it wasn’t illegal. And the CHIPs had to stop giving people tickets for doing it. Eventually, in 2016, a law was passed making lane splitting an honest-to-goodness legal thing.
But I liked the story about lawmakers not being able to pass a law that didn’t also apply to them. It makes perfect sense to me.
There’s a grassroots effort to create a 28th Amendment that reads like this:
“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.”
We shouldn’t need a 28th Amendment. But we do. Congress gets free parking, airfare and postage, subsidized insurance a better retirement plan and a slew of other perks the rest of us don’t get.
One of those perks is that they don’t have to follow the same laws against insider trading that the rest of us do. Well, technically they do. Because of the STOCK Act passed in 2012. But then they passed a different law making all their investment details not susceptible to the Freedom of Information Act. So, you know, out of sight, out of mind.
A 28th Amendment to limit the separation of state and…well…us a is nice idea, but it won’t happen.
How do I know? Because of the 27th Amendment.
The last Amendment made to our Constitution, the 27th Amendment, was finally ratified by the necessary three quarters of the states on May 7, 1992. Most people don’t even know there are 27 Amendments, nor do they know anything at all about the 27th.
So, let’s fix that.
The 27th Amendment is pretty short. It goes like this:
“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
Now, when I first heard about this, I was a little pissed. I mean, there’s no law that says anything about how my compensation is calculated. Except for the minimum wage, which isn’t the same thing at all.
I thought that the politicians must have had a huge set of cojones to even propose such a thing, let alone make it part of our Constitution.
Then I learned more.
You see, the 27th Amendment wasn’t proposed after the 26th Amendment. No, it was proposed before the 26th Amendment, and before the 20th Amendment, and the 15th, and even the 11th. In fact, it was number two on the very first list of Amendments, which was proposed by James Madison. In 1789.
The idea behind it is to limit Congress’ power to willy-nilly give themselves raises whenever the mood strikes them. And, over the years, that mood has stuck them a lot.
Madison was our 4th President. By the time he took office, it became apparent to him that politicians suck. So, to prevent the inevitable misuse of power, he proposed that legislators couldn’t give raises to themselves. They could only give raises to the legislators that were still around after the next election. That way, We the People could keep an eye on things and potentially vote the unethical slimeballs out of office before their raise would take effect.
After a series of negotiations, that line item was separated out to stand on its own. A collection of ten of the things proposed by Madison were repackaged by some 18th century PR dude and became known as “The Bill of Rights”.
I know what you’re thinking, you’re thinking, “But Mike, why didn’t it become the 11th Amendment?”
Great question.
Like I said, Madison knew that politicians sucked, he just didn’t realize how much they sucked. A two-thirds majority of both the House and Senate are required for a proposed Amendment to move on to the next stage. Back then, there were only 65 Representatives and 26 Senators. But at least 19 Senators and 44 Representatives thought it was a good and honorable idea and the measure passed.
Unfortunately, the next step is to get the proposed Amendment approved, the technical term is “ratified”, by three quarters of the States.
But that’s a problem. What would eventually become the 27th Amendment was designed to limit the power of the legislators. And where do most legislators come from? That’s right, from State governments. The very people who would have lost their ability to give themselves raises, should the Amendment become part of the Constitution.
So, it didn’t.
Back then, there were only 13 states, meaning they only needed nine to agree to the proposal and it would become an Amendment. They got seven.
After that, it got increasingly more difficult for the proposal to become an Amendment because we kept getting more states. And the target kept moving.
Fast-forward 193 years to the 1980’s. The proposed 11th Amendment still wasn’t an Amendment. And, as Madison predicted back in 1789, Congress had developed a bad habit of giving themselves raises for no apparent reason. Which, except for Congress, didn’t make anyone happy.
There wasn’t much anyone could do about it until 1982 when a guy named Greg Watson, from the University of Texas at Austin, realized that the proposed Amendment was still on the books, and there was no expiration date. Eventually word spread and enough people got pissed off enough to demand that things change.
That’s when State Legislators almost everywhere started worrying less about the job they wanted, and more about keeping the job they currently had. Knowing that the jig was up, they started voting for the proposed Amendment to show how responsible they were so people would continue to vote for them.
Finally, in 1992, the Constitution to the United States of America was amended for the 27th time.
Now, back to the proposed 28th Amendment. Sure. I agree that Congress shouldn’t be able to hold themselves above the law. It’s a nice idea and the memes based on it get lots of “likes”.
But it will never happen.
Because back on June 27th, 1792, Kentucky became the last state to ratify the proposed 11th Amendment for 81 years, and that’s when “They the People” became a thing. That’s when the people that govern the United States decided that they were above the laws that the rest of us are expected to follow. For those of you not keeping track, it took less than 16 years for that to happen.
To get a 28th Amendment as proposed, “They the People” would need to agree to live under the same laws as “We the People”.
And that’s never going to happen. And even if it did, we’d need three quarters of the State governments to agree. We can’t even get them to agree that election fraud is a bad thing. So how likely do you think it is that legislators from 38 of our States would agree to reduce the powers of a job they’re trying to get?
I’ll answer that for you. Pretty damn unlikely.
“They the People” have existed in the United States for 230 years. Madison saw trouble coming and tried a hail Mary pass to put a stop to it. Madison’s plan eventually worked because the ball stayed in the air for more than two centuries. And that meant “We the People” could still make the part of the process that was left undone happen.
So, we did.
But these day’s it’s much more difficult to affect change. Most proposed amendments now come with an expiration date so some enterprising undergraduate student can’t dust it off 192 years from now and finish the job.
Politicians suck. Probably more today than they did back in the day of James Madison. But, technically, giving themselves benefits and loopholing their away around laws that you and I have to follow is perfectly legal. Because it’s not explicitly illegal.
Which is why we need the 28th Amendment. Which we’re not going to get.
But the only reason we need it is because we keep electing politicians that suck.
And that means all is not lost. We don’t have the power to propose Amendments to the Constitution, but what we do have is the power to vote. I want you to keep all this in mind in November when We the People once again select They the People.
Because while we might never see that 28th Amendment, maybe, just maybe, we can elect people who are honorable and ethical, and don’t require a Constitutional change to do the right thing.
