Can a Constitutional Amendment be Unconstitutional?

Hmmm. Since the Supreme's are supposed to be beholden to the constitution in interpreting law, I'd imagine that it trumps their authority. Not that that would have anything to do with real-world actions.

I'm doing Thanksgiving with a lawyer and three law students (shudder). Maybe it'll come up...

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If it's a ratified amendment then it is a part of the Constitution and as such, can't be ruled "unconstitional". Any/all parts of the Constitution are always "Constitutional".

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And: She sells sea shells by the seashore.
Say the three times fast.

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How can an amendment to the constitution possibly be unconstitutional? It amends or adds to whatever is in the constitution.

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I think the question may be along the lines of, "Is a proposed constitutional amendment subject to judicial review?" Just my read.

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patiodog wrote:

I think the question may be along the lines of, "Is a proposed constitutional amendment subject to judicial review?" Just my read.

If that was the intended question then the answer would be no. People could challenge the process by which an amendment is passed but the judicary has no authority over the content of proposed legislation itself.

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I seem to recall this debate in connection with the proposed "flag-burning amendment." Since the SCOTUS has ruled that flag-burning is a protected form of speech under the First Amendment, some scholars argued that a "flag-burning amendment" (which would have permitted Congress to enact laws prohibiting flag-burning) would contravene the First Amendment -- in effect, they argued, it would have been an "unconstitutional constitutional amendment."

I think the consensus, however, is that a subsequent amendment effectively repeals any contrary provisions already present in the Constitution. Thus, e.g., the Reconstruction amendments effectively repealed the "3/5ths Clause" in the Constitution, even though the amendments never made that explicit. Along the same lines, a flag-burning amendment would supersede the First Amendment to the extent that the two provisions diverged on the issue of flag-burning. So, in sum, I think there can be no such thing as an "unconstitutional" constitutional amendment.

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joefromchicago wrote:

...I think the consensus, however, is that a subsequent amendment effectively repeals any contrary provisions already present in the Constitution....So, in sum, I think there can be no such thing as an "unconstitutional" constitutional amendment.

Isn't this how Prohibition was repealed? Just a new Amendment, superceding the old one. Heck, if we really wanted to (and there were enough votes), we could go back and bring Prohibition back.

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Obviously, the spark for this question is the proposed amendment defining 'marriage' as a union between a man and a woman.

I am convinced that this contravenes 'equal protection under the law'.

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Yeah, but Joe's got a good point, SP, that would narrowly negate any "equal protection" argument in so far as concerns a marriage of people of the same gender, or, say, Gus and his goat . . .

New amendments always trump previous text . . .

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Heck. Take a look at the 26th Amendment to the Federal Constitution.

"The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age."

The right to vote can't be denied because of age.. Unless you are under 18!

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SealPoet wrote:

Can a Constitutional Amendment be Unconstitional, or does the amendment's being in the Consitution make it Consitutional?

While just relying on linguistics one must accept that any amendment to the constitution proposed, debated and ratified following the guidelines of Article V would be "constitutional," it can be violative of the fundamental principles behind the constitution and thus be void.

The constitution and the governmental powers created by it establish a specific form of government. Each Article, Section and clause is a page of a blueprint that will only allow one "style" of government to be built. This "style," a Constitutional Republic, has certain identifiable features and limits that are required to be included in order to be considered consistent.

For instance, one basic principle is that the people shall never be exposed to punishment under an ex-post facto law. If an amendment were to be passed negating that protection it would be invalid.

The principles behind the constitution are deemed to be permanent and unchangeable. Please see CALDER v. BULL, 3 U.S. 386 (1798)

"The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.
So the answer to your question is that an amendment to the constitution can be violative of the constitution; because it violates the principles upon which the constitution is based and garners its legitimacy.

See also Marbury v. Madison; Re: how to determine if an act is "repugnant to the constitution."

"It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. . . The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent."
See also West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943); Re: holding the Bill of Rights and our other "fundamental rights" are fully excluded from any vote to rescind them. (I would assume this includes a ratification vote on a proposed amendment repealing a provision of the Bill of Rights)

"The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

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Surf_Fish_IBSP wrote:

For instance, one basic principle is that the people shall never be exposed to punishment under an ex-post facto law. If an amendment were to be passed negating that protection it would be invalid.
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Nonsense. There is nothing that prevents any portion of the Constitution from being revoked or amended. The ex-post facto issue is covered in Article 1, Section 9 of the Constitution and is fully amendable.

There is nothing in the Constitution that limits the amending of the document as you claim. You can cite all the Supreme Court rulings you'd like but the USSC gets it's authority from the Constitution and they can't rule and amendment to the document itself as unconstitutional.

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fishin' wrote:

Nonsense. There is nothing that prevents any portion of the Constitution from being revoked or amended.

Correct; I didn't say there was anything written; the framers of the constitution assumed that future generations would have some familiarity with the founding principles. I stipulated that the constitution is only a particular grouping of words and words can be changed. The principles behind those words however are the inviolate matter. This constitution was ordained and established to empower a specific form of government; it is a form of government in which ex post facto laws are incongruous. The government's actions are deemed legitimate or illegitimate by a greater set of rules than just the words of the constitution.

Using your line of reasoning, if we were to amend the constitution and rescind the 4th, 5th, 6th, and the 8th Amendments, the government would then be legitimately empowered, to search and arrest a citizen without warrant, torture a confession out of him, convict him in a kangaroo court without benefit of counsel, then take him immediately to the public square and have him hung, drawn and quartered.

That would be OK?

I don't think so. Those actions would be illegitimate for this government, formed by this constitution, based on the principles embraced by the founders.

Repealing any provision in the Bill of Rights or changing the wording of a restrictive clause in the body of the constitution (i.e. forbidding ex post facto law) would not convey a power to government that beforehand was both forbidden and never within its scope of power.

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The ex-post facto issue is covered in Article 1, Section 9 of the Constitution and is fully amendable.

Correct, but for the legislature to enact such laws, even with the supposed new "constitutional authority" to do so, would be an illegitimate exercise of governmental power. If, instead of writing the 13th Amendment as we know it now, a different grouping of words were chosen? Instead of,

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
this group of words was ratified:

No law prohibiting slavery nor involuntary servitude, including as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Not much of a change of letters but a world of difference in meaning. Would those simple changes in wording have made the practice of slavery legitimate in the USA?

I don't think so; the fundamental, founding principle of equal rights forbids it and was the reason for slavery's elimination.

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You can cite all the Supreme Court rulings you'd like but the USSC gets it's authority from the Constitution and they can't rule and amendment to the document itself as unconstitutional.

They were offered as evidence that a higher plane of rules exist than those to be squeezed from the words in the constitution.

If the people choose to live under a government where ex post fact laws are legitimate, the would need to "institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Mutating and perverting this constitution into violating the principles it is based on is not legitimate. Claiming that it can be "amended" to appear to endorse that which it specifically was established to prohibit is an insult to its spirit.

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Surf_Fish_IBSP,

I just want to thank you for using the list BB code to indent text. I had never thought to use it that way and it will be very useful to me in the future when I want to avoide teh quote BB code.

Thanks!

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Surf_Fish_IBSP wrote:

Using your line of reasoning, if we were to amend the constitution and rescind the 4th, 5th, 6th, and the 8th Amendments, the government would then be legitimately empowered, to search and arrest a citizen without warrant, torture a confession out of him, convict him in a kangaroo court without benefit of counsel, then take him immediately to the public square and have him hung, drawn and quartered.

That would be OK?

Whether something is "ok"or not is irrelevant. If Amendments were passed that repealed those amendments they would be entirely legal and binding.

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I don't think so. Those actions would be illegitimate for this government, formed by this constitution, based on the principles embraced by the founders.

If an amendment were passed then those items wouldn't be a part of THIS Constitution would they? They would be a part of the newly amended Constitution.

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Repealing any provision in the Bill of Rights or changing the wording of a restrictive clause in the body of the constitution (i.e. forbidding ex post facto law) would not convey a power to government that beforehand was both forbidden and never within its scope of power.

Yeah.. and??? That is entirely true but that doesn't mean it can't happen. Every authority the government has stems from the Constitution so every Amendment changes the powers that the government has. That is the entire purpose of amending the Constitution.

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Correct, but for the legislature to enact such laws, even with the supposed new "constitutional authority" to do so, would be an illegitimate exercise of governmental power.

You are confusing the creatation of US Code with amending the Constitution. The Congress and the states HAVE the authority to amend the Constitution. There is no "new supposed authority". Read Article 5 of the Constitution. It's still there in it's original form and it grants the authority to amend the Constitution and sets how that will be done.

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Mutating and perverting this constitution into violating the principles it is based on is not legitimate. Claiming that it can be "amended" to appear to endorse that which it specifically was established to prohibit is an insult to its spirit.

The Constitution was based on principles that slavery was acceptable, that women shouldn't vote, that Presidents could serve an unlimited number of terms and a host of other items. All of those have been changed via Amendments. Is it your claim that none of those Amendments are valid? Are those "perversions" of the spirit of the Constitution?

Get the idea of what is "good" or "bad" out of your thinking. That was never a part of the question or discussion. The question is based on what is or isn't POSSIBLE and amending any part of the Constitution, including eliminating the entire Bill of Rights, is entirely possible. Whether or not any such change would be a perversion of principles or insulting would be up to the members of the Congress and the states to weigh in their voting but it doesn't prevent them from voting on the matter one way or the other.

The question here was what CAN or CAN'T be done. Not what SHOULD or SHOULDN'T be done.

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fishin' wrote:

Whether something is "ok"or not is irrelevant. If Amendments were passed that repealed those amendments they would be entirely legal and binding.

I was asking you, personally, whether that scenario would be acceptable to you. I can say without reservation that it would not be acceptable to me.

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If an amendment were passed then those items wouldn't be a part of THIS Constitution would they? They would be a part of the newly amended Constitution.

If you think of the constitution as a document that can be sliced and diced, that clauses can be snipped and modified without impacting the whole, then I guess you are right. I prefer to believe the constitution is an example of a continuum of political thought and reason, establishing a form of government that has at its core, fundamental and unwavering principles.

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Every authority the government has stems from the Constitution so every Amendment changes the powers that the government has. That is the entire purpose of amending the Constitution.

Of course; but there are areas where the government has no business

fishin' wrote:

Surf_Fish_IBSP wrote:
Correct, but for the legislature to enact such laws, even with the supposed new "constitutional authority" to do so, would be an illegitimate exercise of governmental power.

You are confusing the creatation of US Code with amending the Constitution. The Congress and the states HAVE the authority to amend the Constitution. There is no "new supposed authority". Read Article 5 of the Constitution. It's still there in it's original form and it grants the authority to amend the Constitution and sets how that will be done.

Huh? . . At the moment, laws considered ex post facto are null and void. A new amendment is required to grant the legislature a new constitutional authority to enact such laws. Without that new constitutional authority, no power is held by Congress to enact an ex post facto law.

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The Constitution was based on principles that slavery was acceptable, that women shouldn't vote, that Presidents could serve an unlimited number of terms and a host of other items. All of those have been changed via Amendments. Is it your claim that none of those Amendments are valid? Are those "perversions" of the spirit of the Constitution?

Wow . . . slavery was justified in the constitution by considering blacks property, not people. That thought process did last for a while but it failed when critically examined. I would recommend a book for you, it is a classic on the issue of slavery and on the constitution. It is Lysander Spooner's The Unconstitutionality of Slavery. Neat thing is, it won't cost you a penny . . . It's webpublished here, http://www.lysanderspooner.org/UnconstitutionalityOfSlaveryContents.htm

That you consider that what you offered above as examles of our founding principles demonstrates the disconnect you have with them.

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Get the idea of what is "good" or "bad" out of your thinking. That was never a part of the question or discussion. The question is based on what is or isn't POSSIBLE . . .

How can one discuss the possible extents of governmental power without discussing the legitimacy of that exercise of power? At the moment it is POSSIBLE for the government to suspend the constitution and the Bill of Rights without any endorsement from Congress or the State legislatures.

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. . . and amending any part of the Constitution, including eliminating the entire Bill of Rights, is entirely possible.

I've repeatedly stated that it is possible to amend, rescind, revoke, reword, edit, etc, etc, etc, any written document including the COTUS. Now, the real discussion lies in whether it is proper and legitimate. Do you really believe there is no illegitimate power of government; that power is only controlled by what the Congress and state legislatures choose to inflict on us . . . including the repeal of the Bill of Rights?
I realize I'm a newbie here and I don't have a sense of you or your politics but, . . . right now, from what I've read in this thread, you are one dangerous individual.

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Whether or not any such change would be a perversion of principles or insulting would be up to the members of the Congress and the states to weigh in their voting but it doesn't prevent them from voting on the matter one way or the other.

You forget that the final arbiter is the people.

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The question here was what CAN or CAN'T be done. Not what SHOULD or SHOULDN'T be done.

I know I can be dishonest
I know I can be cruel
I know I can be cold and distant
I know I can violently assault somebody
I know I can murder someone
I know I can be honest
I know I can be kind
I know I can be emotionally supportive
I know I can help the weak and sick
I know I can sacrifice for another person
And the same goes for government, that's the easy part . . . the hard part is what you supporters of moral equivalency so wish would go away; determining which SHOULD or SHOULDN'T be done.

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Craven de Kere wrote:

Surf_Fish_IBSP,

I just want to thank you for using the list BB code to indent text. I had never thought to use it that way and it will be very useful to me in the future when I want to avoide teh quote BB code.

Thanks!

I use it all the time, it does set off that part of your post that is neither your words nor a quote of the person you are replying to.

I'm surprised it is not an offered quick key here, it is on every other forum using this interface.

I'd much rather work in html, the "options" to the left of the compose screen says "HTML is ON" but I tried earlier and the preview pane showed the raw code.

It is rare for these boards to have html enabled for all posters, I know havoc can be wrought upon the site!

EDITED to add ---

I just checked your profile, I think you will get a kick out of this site.

bu!&hî umoC ap!s&ñ

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Surf_Fish_IBSP wrote:

If you think of the constitution as a document that can be sliced and diced, that clauses can be snipped and modified without impacting the whole, then I guess you are right. I prefer to believe the constitution is an example of a continuum of political thought and reason, establishing a form of government that has at its core, fundamental and unwavering principles.

And I'll say it again, how you feel about Amending the Constitution is irrelevant to the original question posed.

Surf_Fish_IBSP wrote:

I've repeatedly stated that it is possible to amend, rescind, revoke, reword, edit, etc, etc, etc, any written document including the COTUS. Now, the real discussion lies in whether it is proper and legitimate.

THAT would be an entirely DIFFERENT discussion. Go back and read the very first post that started this thread.

sealpoet wrote:

Politics aside... What are the legal ramifications?

Can a Constitutional Amendment be Unconstitional, or does the amendment's being in the Consitution make it Consitutional?

THAT is the question here. Not what SHOULD or SHOULDN'T be done. The question of whether Constitutional Amendments SHOULD be made or not may very well be a great discussion topic but it doesn't address THIS topic.

Surf_Fish_IBSP wrote:

Do you really believe there is no illegitimate power of government; that power is only controlled by what the Congress and state legislatures choose to inflict on us . . . including the repeal of the Bill of Rights?

Only a fool would believe that - but that is entirely within the realm of should or shouldn't and NOT under discussion here.

Surf_Fish_IBSP wrote:

I realize I'm a newbie here and I don't have a sense of you or your politics but, . . . right now, from what I've read in this thread, you are one dangerous individual.

Here's a tip for you - don't run around telling people that what they've written or said are wrong when what you are actually thinking of is totally different from what they've addressed. If all you want to do is argue you'll have plenty of opportunities but arguing that it's raining outside when someone asks why it gets dark at night just makes you look foolish.

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Can a Constitutional Amendment be Unconstitutional?

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