The Volokh Conspiracy

Is it amendment 8?

3?

The question needs clarification: is it the shortest-lived (which would make it the prohibition amendment), or the shortest amount of text?

The latter appears obvious, but thinking like a lawyer, I want to avoid a trick question. I'll vote for the 13th out of sheer ignorance.

The Eleventh Amendment?

-- Is there significance, perhaps, to the redundant phrasing in the question? (The shortest "constitutional amendment in the U.S. Constitution"). --
.
I didn't take it as redundant. I took it as specifying which constitution, out of many, was the subject of the question.

Either 9'th or 10'th.

I think I'll go with 10'th.

The one protecting our liberties against overweening government.

0 words.

The 8th. It is just an inkblot. (former supreme court nominee)

My guess was 27th. or the third.

The 10th was shortest lasting, anyway.

I thought the 9th was the inkblot?

3rd is my guess

my father Vladimir

"Call me Wally," said the only Vladimir I ever knew. What do his friends call him? Vlad?

Interestingly, some of the runners up require one to decide on one's criterion for length. The Second Amendment is longer than the 27th if one counts words (27 vs. 24), but shorter if one counts characters (146 vs. 163).

Here is a list of amendments ranked from fewest to most words. As previously stated, this changes a little bit if you count the number of letters instead of the number of words, but the 8th is still the shortest by either metric.
The 8th also uses the largest words, at an average of 6 characters per word (the 3rd having the fewest at 3.9).

8th - 16 words
9th - 21 words
27th - 24 words
2nd - 27 words
10th - 28 words
16th - 30 words
3rd - 32 words
19th - 39 words
11th - 43 words
1st - 45 words
13th - 47 words
7th - 50 words
15th - 51 words
26th - 52 words
4th - 54 words
24th - 75 words
6th - 81 words
21st - 96 words
5th - 108 words
18th - 112 words
23rd - 131 words
17th - 134 words
22nd - 164 words
20th - 353 words
25th - 396 words
12th - 401 words
14th - 434 words

The right to privacy amendment is shorter.

It depends on the date and time: the position of the sun affects the length of the penumbras.

Michael, what makes you think that? Even with Dem control of both houses, there's still a decent pro-gun majority. Maybe it won't be as strong an RKBA as you like (they'd probably let states refuse to issue CCW, for instance) but it would still be there.

How about the amendment to the effect that homosexual sodomy is a constitutional right? Interestingly, zero-word amendments appear to have a more binding impact than longer amendments when it comes to SCOTUS decisions.

Glenn, notice that even though it was put forward by a member of the GOP (fun fact: I grew up in that district), that has gone nowhere. The number of pro-gun Democrats exceeds the number of anti-gun Republicans and so, if then assault weapons HR6257 passes, it will be by a very thin margin.

Dead Dead Dead Dead Dead

Well, the Assault Weapon ban was one that was politically disastrous for the Democrats while having no rationality behind it - regardless of one's view of the 2nd amendment.

That does not mean that the Dems are pro-Guns. Too often I hear Dems, including our pre-POTUS, say they want to protect the right of "hunters," as if the 2nd was about hunters rather than self and collective defense.

In a discussion of Eric Holder's view of the 2nd amendment, opponents (or skeptics) of Holder as the AG claimed, with varying degrees of pride, that Holder's views defy in large part the interpretation of the 2nd amendment advanced by every sitting SCOTUS judge.

Congress isn't poised to pass significant gun legislation, either, and it was Heller that recently reaffirmed the 2nd amendment right to bear arms, over which there was little (any?) Congressional outrage. Scalia used the excellent phase "prefatory clause" to descrie the words of the 2nd amendment which, incidentally, the NRA excises from its membership cards.

So I'm wondering, in the absence of a single SCOTUS member openly advancing the collective rights theory of the 2nd amendment, in the absence of any Congressional posturing on the Heller decision, why would anybody think the current Congress would erase the 2nd amendent if they could? That doesn't correspond to the Congressional agenda, the broader legal climate, or the national mood. I'm not arguing that nobody but nobody has a restrictive view of gun rights; that's not true, and it's not a position I could credibly defend. But I am saying, that given the legislate and judical cultures at present, who can justify a sincere fear that the 2nd amendment is about to be attacked, or even that, given its druthers, the current Congress would remove
it entirely? As others pointed out, there a lot of gun rights activists in Congress; and arguably Obama's largest gaffe of the campaign season involved an assertion that people "cling" to guns. A reasonable person is entitled to find that statement significant. A reasonable person should also think it's significant that, apparently, that was about the most controversial thing he could say throughout the campaign.

Vanishing gun rights? Really?

That does not mean that the Dems are pro-Guns. Too often I hear Dems, including our pre-POTUS, say they want to protect the right of "hunters," as if the 2nd was about hunters rather than self and collective defense.

No, but a large proportion (80, at least) are pro-gun enough to keep any proposal reasonable. Moreover, if Pelosi and Reid want to keep their majorities in 2010, they will not push gun control on vulnerable freshman who are probably a tad too liberal for their constituencies anyway.

Just look at the vote count on the DC 2A bill.

Blue Dog Democrats are the best possible defense for gun rights.

A Republican President will not sign a gun control bill; a Democrat President will be constrained by the presence in his party of a large, strong pro-gun voice.

250 Democrats, 80 of whom are pro-gun, are less likely to come up with and ram through anti-gun legislation, to be signed by a Democrat President, than 220 Democrats, 50 of whom are pro-gun.

It's the relative strength of lobbies within parties that matters. This can also be illustrated within the Republican party--the strength of the social conservatives is that more of them are currently in office.

Here Here!

Let's do amend the Constitution explicitly rejecting any right to homosexual sodomy!

Allowing states to criminalize homosexual sodomy should be the top priority for the administration in these complex times--and jailing homosexual sodomites would, of course, ease all our problems.

If they were rewritten today by the current Congress they'd all be longer, very likely much longer, excepting for the 2nd and others that would be excised altogether.

"Michael, what makes you think that? ..." Oren

In part it was a rhetorical point to underscore a general principle - but an abundance of words is often a hallmark of pretense, of a beguiling and shallow political class given to tergiversations and self-promotion.

(To remove this from domestic politics to point to a general set of examples, one need only observe the abundance of words at the U.N. - and other tranzi orgs and international law in general - to observe deeply entrenched corruptions and tergiversations. A specific example is the profoundly entrenched anti-Semitism that variously proliferates at the U.N. and other tranzi orgs. It is worth calling attention to this international aside because tranzi orgs - as with black robed jurists - are not directly accountable to voting constituencies.)

As to the number of pro-gun Left/Dems and Dems in general, they include Representatives and Senators who are elected by their constituents, thus are directly accountable to those constituents, to "We the people ..." Otoh, there is ample evidence some of those pro-gun Dems are pro-gun only because they are answerable to their voting constituencies - and not on principle. Their articulations, when it comes to the 2nd Amendment (other issues as well), are similar to Holder's and Obama's. True, the 5-4 Heller decision will require a different tactical advance, but the strategy remains much the same (e.g., read the dissenting opinions and amicus briefs, heed the ambiguity in Obama's rhetoric).

Yeah, Jerry! Don't go around criticizing dumb SCOTUS decisions like a bigot. Unless the decisions are bigoted themselves. Big bigots like you have no place on bigot-free blogs, buddy.

David Warner wrote:

The 28th Amendment.

I admit to having an unfair advantage, as a mathematician.

Next you will be telling me that a coffee cup and a doughnut are somehow identical ;-)

Sure. Sort of like the old joke about the physicist, the engineer, and the mathemetician.

One day, the three are asked to build the smallest fence around a flock of sheep.

The engineer gathers all the sheep into a circle and builds a circular fence because as we all know a circle has the lowest perimeter for its area.

The physicist says he can do a little better than that. He starts off with an infinitely large fence which he draws infinitely close to the sheep after arranging them infinitely close to one another.

The mathematician builds a very small fence around himself and declares that the area he stands on is the outside of the fence.....

Writing short amendments made sense when there was little United States history. We now have a very long list of SCOTUS decisions, Congressional enactments, Executive signing statements, etc., that draw exacting distinctions between word usages, and several that implicitly say that things would have gone much better if the writers had just said exactly what they wanted to say (which turns into meaning making verbiage longer and more detailed).

Thales: The hypothetical law you speak of could be deemed to be a violation of the Ninth Amendment, because if such a law had been passed at the time the Bill of Rights was passed, pretty much everyone even back then would have agreed that it is unconstitutional. I think that a reasonable judge should strike down a law that people hundreds of years ago would have deemed to be a clear violation of the Bill of Rights; this is completely different from making up a whole new right just because you like a particular social agenda.

"Thales: The hypothetical law you speak of could be deemed to be a violation of the Ninth Amendment, because if such a law had been passed at the time the Bill of Rights was passed, pretty much everyone even back then would have agreed that it is unconstitutional. I think that a reasonable judge should strike down a law that people hundreds of years ago would have deemed to be a clear violation of the Bill of Rights; this is completely different from making up a whole new right just because you like a particular social agenda."

Conveniently, most advocates of the approach I criticize also do not believe that the Ninth Amendment provides any substantive or justiciable rights (e.g. Robert Bork, Antonin Scalia). But if it does, why does what people who lived in 1791 "deemed" a violation of an indeterminate constitutional text (assuming this is knowable) have more warrant than what reasonable observers of the same text today "deem" it to mean? Isn't it possible that the people of 1791 believed inconsistent things or enacted unconstitutional laws (e.g. the Alien and Sedition Act shortly after the First Amendment) that in some case required judicial resolution? Isn't it objectionable to just make up powers of the government to regulate intimate association, more so than to "make up new rights" to such association?

"Part of my practice is writing constitutional amendments. My first several were very short. The next batch was very long. Now they are shorter, but still fairly long." BZ

Well, I was referring to the U.S. Constitution specifically. Constitutional precepts incorporated into the documents of second world, third world and newly emerging states - if that's what you're referring to - are going to be dictated by their own regional, geographic, ethnic, etc. particulars. One size doesn't fit all. E.g., Georgia obviously has its own ethnic, geographic, borderland (Russia), historical, etc. particulars that cannot be ignored or swept aside for the sake of highmindedness.

Regardless and not at all to be argumentative, a general guideline (if not a hard and fast rule) allowing statutes and regulatory agencies to flesh out local and more exhaustive details, while instituting more basic tenets within a constitution, would seem appropriate. A pithy and fitting constitutional tenet, like an aphorism, has the potential to contain a great deal; hence they are both art forms of a certain kind.