Many have recently seen the viral emails crying out for the “28th Amendment.” The claim behind this viral email is that Congress routinely exempts itself from laws that it passes. The cry is for passage of the following amendment:
“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and Representatives; and, Congress shall make no law that applies to the Senators and Representatives that does not apply equally to the citizens of the United States “.
There are three problems with the viral email. First, many of the claims cited (not all) are false or out of date after the passing of the Congressional Accountability Act of 1995. Secondly, the proposed amendment, which I call “The Congressional Fairness Amendment,” is egalitarian in nature and a republican form of government is not. Those in power should have tighter controls and restrictions placed upon them than those who are not in power. The second part of the proposed amendment prevents this. Third, the proposed Congressional Fairness Amendment, runs counter to an important part of the US Constitution, written by for a good reason our Founding Fathers. In Article 1, Section 6 we find:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
I understand this to be placed there for a couple of reasons. First, in order to prevent the legislators from being bullied or threatened by the executive branch, the branch yielding the power of enforcement, the legislators required a degree of immunity. Otherwise, they could be detained from important votes by arrests over trivial matters. I would not put it beyond any administration in the past 100 years to resort to such an act if it could turn a vote. Nevertheless, it is important to remember that this use of the section was for Congressional protection, not privilege. The cries for an amendment to make Congress subject to all laws come from the perception that Congress is taking privilege of this. For example, until a recent outcry Congress was exempt from insider trading laws allowing Congressmen and Senators to invest based upon information learned through congressional briefings. This leaves people with a “what else are they doing” feeling. After all, many Congressmen and Senators have become multi-millionaires after being voted into office. The elitism is evident to all.
Charles de Montesquieu, a French philosopher who lived from 1689 to 1755, had great influence on the Founding Fathers. Much of what is written in the US Constitution can be traces back to Montesquieu and John Locke (1632 to 1704). The founders tried to strike a balance between too little equality between the leaders and the people and too much. As de Montesquieu wrote,
“The principle of democracy is corrupted not only when the spirit of equality is lost, but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command. So the people, finding intolerable even the power they entrust to the others, want to do everything themselves: to deliberate for the senate, to execute for the magistrates and to cast aside all judges.”
He argued that in both cases, despotism was the result. Though most understand how too little equality results in tyranny, few understand how too much equality does. The result is a loss of republicanism for total democracy and eventually anarchy. Anarchy never returns to liberty; it results in a dictator coming into power. This has been repeated continuously throughout history.
So to sum it up, where I once use to subscribe to the call for Congressional equality, I am now cool on the idea. I fear that the current outcries are leading us to the opposite extreme of too much equality being desired in the hearts of the people. I believe that if a term limit amendment, pay limit amendment, anti-pork amendment and the repealing of the 17th Amendment are in place, the checks upon Congress will be sufficient to prevent elitism. If the proposed Constitutional Convention feels that there must be something done with respect to excesses being taken by Congress, then I propose the following sentence be added to Article 1, Section 6:
Privilege from arrest shall not be construed to exempt Congress from laws they pass, neither shall time served in Congress be applied to any statute of limitations for any law.
Thus, Congress cannot exempt themselves and they can be arrested for abuses upon termination of their service. Congress must be accountable to the People or the system falls into tyranny.