In Extremis: The Forever Purge and Constitutional Amendments

Disclaimer: This article is SATIRE and legal entertainment. Any Ranking 10 government members or Class 4 armed weapons aficionados should seek legal advice before attempting to amend the constitution. If you are a constitutional scholar, please write in to tell me I am wrong, as I find this whole thing TERRIFYING. Spoilers ahead for all 5 Purge films and the TV Show. 

In The Forever Purge (2021) we learn that the New Founding Fathers of America (“NFFA”), the organization that instituted the First Purge (2018) have returned to power and have reinstituted the annual Purge. This is the 12-hour period where all crime is legal -- you know it, you fear it. But how could you just bring back the Purge when it had just been abolished 8 years earlier?

The Purge film series profoundly misunderstands the legal system. I have covered that fact previously on a podcast.¹ HOWEVER, after extensive research and assistance from my friend Graeme Maitland (he’s the mastermind; go after him, NSA), I have a thorough timeline of how Congress could institute the Purge. 

In 2014, the NFFA came to power in opposition to the Democrats and Republicans -- yay third-party politics. They then decided to institute the Twenty-Eighth Amendment in 2016 to sanction the first annual Purge as an experiment in 2017-- because, apparently, it is easier to institute the Purge than EQUALITY FOR THE SEXES.² To ratify an amendment to the United States Constitution, there are two steps described in Article V of the Constitution:

1. Congress must pass a proposed amendment by a two-thirds majority vote in both the Senate and the House of Representatives;

2. Congress sends the amendment to the 50 states for ratification by a vote of the state legislatures. The amendment becomes part of the Constitution upon ratification by three-fourths (currently 38) of the states.³ A state cannot modify the amendment before ratification and must vote yay or nay on the provision as is.

Getting 38 states to agree on something is easier said than done, but this is the far-off future of 2016 -- the people are bloodthirsty and love consensus building. Assuming that 38 state legislatures cannot agree, there can be a state ratifying convention in three-fourths of the states. The convention is determined by state laws, and requires a process where people are selected as delegates to vote on an issue -- a straight referendum is not allowed.⁴ Only one amendment has been made with this method -- the Twenty-First Amendment to recall the Eighteenth Amendment (Prohibition).⁵

The other method for proposing a constitutional amendment is by two-thirds of the states proposing an amendment. This method has never been successful in ratifying an amendment, however, more conventions have been proposed in the twenty-first century than ever before.⁶ Neither amendment method requires a timeline to complete -- in fact, the Twenty-Seventh Amendment was proposed in 1789 and was ratified in 1992;⁷ it shockingly related to Congress voting on increasing their salary taking effect after an election. Why would it be a conflict for Congress to vote on their salary? 

Amendments can, however, have a time limit for ratification if included in the language of the amendment. The shortest amendment ratification occurred in only 100 days, regarding the Twenty-Sixth Amendment to allow 18-year-olds the right to vote.

Now we have never seen the amendment that instituted the Purge,⁸ but we can hazard it might mirror the Eighteenth Amendment closely:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.9

Now we can just take out the provisions dealing with alcohol and provide them with a provision like this:

       Section 1. After one year from the ratification of this article, there shall be an annual Purge on the designated dates and between the designated times.

       Section 2. No crimes, subject to exception by the legislature, shall exist within The United States, or any place subject to their jurisdiction. 

       Section 3. No state shall make or enforce any law, including the delivery of emergency services, which shall abridge the provisions of this article.   

       Section 4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This would allow Congress to create sweeping legislation to give us the specifics, for example, that the use of weapons above Class 4 is still a crime subject to execution. This also explains how the NFFA in The Purge: Election Year (2016) could suddenly change legislation to remove Rank 10 government officials’ immunity from the Purge. You might have noticed that the President and the electorate have no major role in this process -- yes, the people you do not trust to ask relevant questions to Mark Zuckerberg are in charge of determining if the Americans get the Purge.

You might be asking -- does the Purge not conflict with several provisions of the current constitution? If hate crimes are legal that infringes the equal protection of the Fourteenth Amendment. If the police can walk into your house and seize whatever they want -- still debatable if the evidence could be used the next day against you-- then that infringes the Fourth Amendment. Looking at illegal pornography is not protected by the First Amendment, but would be protected by the Twenty-Eighth Amendment. If two provisions conflict in the Constitution, the US Supreme Court has interpreted the more specific or more recent amendment are exceptions to the general or former amendment.10 Some constitutional scholars argue that an amendment that would undermine the rule of law is illegal and cannot be upheld, but those scholars have to survive for 12 hours to be proven correct.¹¹

Accordingly, we can finally answer the question of whether President Charlene “Charlie” Roan could amend the Constitution only to have it amended back after eight years. We learn at the end of The Purge: Election Year that President Roan won in a landslide on May 26, 2040, after surviving the assassination attempt against her. Notably, it is very odd that the election is in May. The date of an election, currently the first Monday in November, is governed by law,9 so it can be easily changed by legislation. However, the inauguration date is always January 20th of the year following the election, based on the Twentieth Amendment. Therefore, the NFFA were still in presidential power for seven months -- seems like an oversight or an intricate plan by the NFFA to keep power. 

President Roan would then need Congress to pass legislation to repeal the Purge legislation -- a short-term solution as the Purge would still be constitutional if legislation was passed in the future -- or convince Congress to pass a constitutional amendment to repeal the Twenty-Eighth Amendment. 

The Purge Wiki suggests that President Roan overturned the Purge by Executive Order; the film series does not confirm whether this occurred.¹² An Executive Order does have the force of law, however, it cannot conflict with legislation and can be overturned by the legislature passing clarifying legislation.¹³ The President would veto the legislation and then Congress could overturn the veto by a supermajority of -- you guessed it -- two-thirds. Since the Executive Order affects a constitutional provision, Congress may not be able to overturn the Executive Order and only the Federal Court could intervene.¹⁴ President Roan would need to find ambiguity to interpret in the constitutional provision preventing carrying out the Purge. If the Federal Court agreed with President Roan, and courts have very rarely overturned an executive action, then the Purge could be modified by Executive Order.

Unfortunately, if that was the case, it makes the NFFA reinstating the Purge much easier as a subsequent Executive Order can overturn a previous one -- the Purge therefore could be reinstated immediately by order. If President Roan went through the steps to pass a constitutional amendment, that would make things more difficult for the NFFA, but not impossible. They would have between May 2048 and March 2049 to reinstate the annual Purge… but I thought the Forever Purge takes place in March 2048? The inauguration of a new president would take place in January of 2049, remember?

I will note that the timeline ONLY makes sense if one of the following things occurred:

1. The Congress flipped at one of the midterms or during the second election of President Roan. Then the Congress could pass the Constitutional Amendment with the above process to overturn the Constitutional Amendment created by President Roan.

2. President Roan did not serve two terms and the Purge Wiki is incorrect, allowing for an Executive Order to repeal President Roan’s previous Executive Order -- this is supported by comments made by the series creator James DeMonaco, but he might be having trouble keeping track: "Charlie Roan, whose first move as President was to eliminate the Purge, wasn't re-elected and has been gone for years. The divide in America grew. The New Founding Fathers were voted back into power, and the Purge was reinstated."¹⁵

There you have it, the first full argument for how you could institute the Purge in America using the current system's rules. I do not have access to the legislation or constitutional provisions themselves as it is all hypothetical. So, until James DeMonaco steps up and writes the ACTUAL Purge laws out in text for me to analyze, this will be the closest I will ever get to my Purge constitutional fan-fiction - The Purge: An Un-Conventional Romance. 

1. Check out the Purge Episode of the Space Lawyers Podcast featuring special guest Lindsay Traves where we analyzed why the Purge laws make no sense; https://www.buzzsprout.com/146604/3011329-episode-6-the-purge-2013-and-force-majeure-and-legalized-crime

2. ERA Explainer. Equality Now. (n.d.). https://www.equalitynow.org/era_explainer; Veronica Stracqualursi, C. N. N. (2021, March 7). Federal judge says deadline to ratify ERA 'expired long ago' in setback to advocates' efforts. ABC7 Chicago. https://abc7chicago.com/equal-rights-amendment-era-federal-judge-advocates/10395278/. 

3. US Senate. (2019, September 23). Amending the Constitution. U.S. Senate: Amending the Constitution. https://www.senate.gov/reference/reference_index_subjects/Constitution_vrd.htm#:~:text=Article%20V%20of%20the%20Constitution,thirds%20of%20the%20state%20legislatures. 

4. Hawke v. Smith, 253 U.S. 221, [1920]); challenged unsuccessfully in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787; 192 L. Ed. 2d 704.

5. Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws (Ann Arbor: University of Michigan Press, 1938).

6. Super, D., & Leachman, M. (2017, January 17). States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues. Center on Budget and Policy Priorities. https://www.cbpp.org/research/states-likely-could-not-control-constitutional-convention-on-balanced-budget-amendment-or. 

7. Calabresi, S. G., & Teachout, Z. (n.d.). The Twenty-Seventh Amendment. Interpretation: The Twenty-Seventh Amendment | The National Constitution Center. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxvii/interps/165. 

8. There was a Twenty-Eighth Amendment drafted that was available on a Purge promotional website -- this is not-canon and honestly seems like a terrible way to draft the Purge amendment. It has the wrong date for the Purge from the date in all the films (and different dates on the different pages of the website itself), no ability to create legislation to carry out the provisions, the ranking of officials is different from the film, there is a suggested weapon clause which is completely unnecessary, and it undermines The Purge: Election Year as the NFFA would have to pass a constitutional Amendment overnight to change the immunity of government officials. I would go with the version I drafted if the NFFA are listening; The New Founding Fathers. (2023). About the New Founding Fathers of America - History & Amendments: The Official Party of The Purge. New Founding Fathers of America. Accessd online July 19, 2021 http://web.archive.org/web/20140712012311/http://www.newfoundersamerica.org/about/.

9. National Constitution Center. (n.d.). The 18th Amendment of the U.S. Constitution. https://constitutioncenter.org/interactive-constitution/amendment/amendment-xviii. 

10. Raban, O. (2012). Conflicts of Rights: When the Federal Constitution Restricts Civil Liberties. School of Law - Oregon University Conflict of Rights. https://law.uoregon.edu/sites/law1.uoregon.edu/files/faculty/law%20bios%20files/2012_Conflicts_of_Rights.pdf. 

11. Chemerinsky, E. (2017, August 28). Why the Electoral College system violates the Constitution: Erwin Chemerinsky. Daily News, accessed online July 19, 2021, https://www.dailynews.com/2016/12/13/why-the-electoral-college-system-violates-the-constitution-erwin-chemerinsky/; for the opposing position see Rappaport, M. (2018, June 28). The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional . The Originalism Blog. https://originalismblog.typepad.com/the-originalism-blog/2018/06/the-problems-with-declaring-procedurally-valid-constitutional-amendments-to-be-unconstitutionalmike-.html. 

12. Fandom. (n.d.). Charlie Roan. PurgeSeries Wiki. https://purge.fandom.com/wiki/Charlie_Roan. 

13. 2 U.S. Code § 7 - Time of election, <https://www.law.cornell.edu/uscode/text/2/7>. 

14. Federal Judicial Center. (n.d.). Federal Judicial Center. Judicial Review of Executive Orders. https://www.fjc.gov/history/administration/judicial-review-executive-orders; Berger, A. (2017, February 2). Here's how powerful an executive order is and how it could be reversed. Business Insider. https://www.businessinsider.com/how-powerful-executive-order-could-be-reversed-donald-trump-philip-bobbit-2017-2. 

15. The creator said that President Roan was gone for years suggesting that she was not a two-term president if the Forever Purge took place in 2048; Grove, D., & Edwards, M. (2021, June 17). The Purge creator James DeMonaco explains why The Forever Purge isn't a "direct sequel". SFX Magazine, accessed online July 20, 2021, https://www.gamesradar.com/the-purge-creator-james-demonaco-explains-why-the-forever-purge-isnt-a-direct-sequel/.