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Can a Constitutional Amendment be Unconstitutional?

 
 
Craven de Kere
 
  1  
Reply Sun 11 Jan, 2004 10:22 am
Surf_Fish_IBSP wrote:

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


That's because there is a Javascript enabled interface, and lists can't be handled as easily.

Quote:
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!


It's enabled but all tags are stripped. It's enabled just for foreign languages.
0 Replies
 
Surf Fish IBSP
 
  1  
Reply Sun 11 Jan, 2004 11:30 am
fishin' wrote:
And I'll say it again, how you feel about Amending the Constitution is irrelevant to the original question posed.

Wasn't the original question requesting board member's opinions on amending the constitution? My opinion happens to be,
    "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."

That opinion forces a particular standard to be used to judge the legitimacy of the powers of government and how far they extend. This opinion has been formed by and is based on the works of Aristotle, Cicero, Locke, Sidney, Harrington, Cato's Letters, the English Whigs, Rousseau, Burgh, Montesquieu, etc, etc, etc,. These writings Jefferson called, "the elementary books of public right." These writers promoted a governmental model on principles of limited, delegated powers, held by a government that only keeps that power with the consent of the governed. The citizens retained everything not delegated to the government. Our rights were understood to be inherent and inalienable. That is, our rights are endowed by the Creator, not by the magistrate and that each person's natural rights are of such intrinsic value that a person, even willingly, can not surrender, relinquish or transfer their care to another person.

This opinion is also based on reading and understanding those political philosopies disdained and discarded by the founders as not being instuctional in the formation of our constitution. The writings of Jean Bodin, Sir Robert Filmer and Thomas Hobbes are important to read also, knowing what the founders dismissed is as imprtant as knowing what they embraced.

So, if you wish to argue that an amendment to the constitution, even one enacted in accordance to Article V can in fact remove the inalienable, inherent rights of the citizen, then I can certainly argue that such an amendment is invalid. FYI, that is arguing the "legal ramifications."
The constitution's amendment process can not be utilized to legitimately violate the precepts it is based on. It seems that perhaps you are incapable of proceeding with the logical extension of argument that follows after we have established the simple fact that yes, the constitution can be amended to repeal or change any words within it. The argument, the discussing of the "legal ramifications," of such an amendment is appropriate and warranted. What would be the effect of an amendment repealing gravity? Well, as far as the government is concerned, the fundamental principles are considered of equal stature. An amendment violating a fundamental principle is as without effect as one forbidding a law of physics.
Quote:
THAT would be an entirely DIFFERENT discussion. Go back and read the very first post that started this thread.

I've read it once, that was enough. I understood it then and answered the question after reading the posts ahead of me that did establish that the words of the constitution can be changed. The thread was dead for a month and a half; I find the topic interesting, post my opinion and I have you jumping down my throat crying I'm not addressing the topic. You are a jerk, how you became a moderator is beyond me. Do me a favor, if I have so disrupted the train of thought in this dead thread, just go back and delete the messages after Nov 26th. Heaven forbid I piss in your playground.
fishin' wrote:
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.

Dimbulb, how can one discuss the legal ramifications and whether an amendment is agreeable to the constitution without having a standard in which to judge it by? Is the standard just, if we can do it, it must be acceptable? In this nation, the standard is what constitutes a legitimate exercise of governmental power. In another country, perhaps one with authoritarian rule, where no such standard exists except that which advances the state, your position would be valid.

Again, that is not the case in the USA; here, the scope of legitimate powers are outlined in those works of political philosophy the founders embraced as instructional in the establishment of the constitution. Those works are deemed by SCOTUS to be "approved commentators" and they are read for their instructional value on fundamental principles.
Quote:
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.

Mr. Pot, meet Mr. Kettle
Quote:
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.

I like to debate . . . that usually means that both sides have an opinion on a subject and attempt to substantiate it. In this thread, both of us have an opinion, yours just happens to be that my opinion doesn't matter.
Uhhh, that's not a debate, that is an argument and it seems to be all you are capable of.
0 Replies
 
fishin
 
  1  
Reply Sun 11 Jan, 2004 08:30 pm
Surf_Fish_IBSP wrote:
Wasn't the original question requesting board member's opinions on amending the constitution?


He didn't ask for opinions. He asked what the legal ramifications would be and specificly stated "Politics aside..." . Your continuing argument of (paraphrasing) "I think it would be a bad idea" isn't a legal ramification and only addresses political aspects as expressed through your opinion.

Quote:
I like to debate . . . that usually means that both sides have an opinion on a subject and attempt to substantiate it. In this thread, both of us have an opinion, yours just happens to be that my opinion doesn't matter.
Uhhh, that's not a debate, that is an argument and it seems to be all you are capable of.


I'm all for debate when the topic is an item for debate. This one was never a debate. It was a direct question that asked for a specific answer - not opinions. You have yet to show a single legal reason why a Constitutional amendment could be unconstitutional and have only listed opinions on why doing so would be a bad idea.





On a secondary note - I'd suggest you read the Terms of Service you agreed to when you signed up on this site. Insulting members using terms such as "dimbulb" are not permitted.
0 Replies
 
joefromchicago
 
  1  
Reply Mon 12 Jan, 2004 10:19 am
Well, whaddya know? I leave for a couple of days and an actual debate on a legal topic breaks out!

Surf_Fish, you've raised some valuable points. But your reliance on some of the sources is misplaced. Your quotation from Calder v. Bull, for instance, is hardly conclusive on the issue. After all, Justice Chase's opinion wasn't the majority opinion in that case: the SCOTUS was still issuing seriatim opinions in those days, so each justice wrote separately. Chase's opinion, in other words, stood for Chase's position, not the court's. Moreover, Chase's position in Calder embodied a "natural law" vision of the law that has largely been repudiated (although justices Scalia and Thomas have, at times, suggested that it is still viable).

Likewise, in West Virginia Bd. of Ed. v. Barnette, although the court correctly held that constitutional rights were not subject to legislative rescission, it was not suggesting that rights embodied in the constitution were not subject to constitutional amendment (that issue was simply not before the court).

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.

I'm not sure what those fundamental and unwavering principles might be. If, for instance, we were to hold that "one person, one vote" constitutes a fundamental premise of the constitution, then everything before the enactment of the Nineteenth Amendment would, arguably, be unconstitutional. In other words, if a provision (or an omission) contrary to the fundamental tenets of American democracy renders the constitution "unconstitutional," then can we honestly say that the constitution has always been constitutional?
0 Replies
 
roger
 
  1  
Reply Mon 12 Jan, 2004 10:39 am
Whaddya know?
Quote:
Well, whaddya know? I leave for a couple of days and an actual debate on a legal topic breaks out!


What do I know? Glad you're part of it, joe. Your stuff is always interesting.
0 Replies
 
Surf Fish IBSP
 
  1  
Reply Wed 14 Jan, 2004 11:39 pm
joefromchicago wrote:
Well, whaddya know? I leave for a couple of days and an actual debate on a legal topic breaks out!

Not according to the self-appointed "welcoming committee." My reviving of this dead thread by offering my "opinion" has, in one person's assessment, hijacked it and is entirely unwelcome.
joefromchicago wrote:
Surf_Fish, you've raised some valuable points. But your reliance on some of the sources is misplaced. Your quotation from Calder v. Bull, for instance, is hardly conclusive on the issue. After all, Justice Chase's opinion wasn't the majority opinion in that case: the SCOTUS was still issuing seriatim opinions in those days, so each justice wrote separately.

I place weight on Chase's opinion for two reasons. 1st, it was offered contemporaneously with the debate and ratification of the Constitution and Bill of Rights. 2nd, no rebuttal or refutation to Chase's basic premise exists in the opinion. While Justice Patterson does say, . . .
    "Though I concur in the general result of the opinions, which have been delivered, I cannot entirely adopt the reasons that are assigned upon the occasion."

. . . he acknowledges that an act of the legislature that violates the "natural laws of justice" is void; he states that the judiciary's power only extends to declaring the act is violative of the fundamental principles not to bindingly declaring it void.
    "If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2nd. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act."

I realize that this case discusses laws created by the regular legislative power granted to these bodies. I realize that the amendment process is of a different nature; if the process is followed the outcome is inherently "constitutional." The amendment process remains though, an action of those bodies operating under their federal constitutional authority.

That constitutional authority was originally granted to those bodies to be exercised in conformity with the founding principles. All legislative action is especially controlled by the clearly defined and delineated exceptions to the exercise of governmental power, (ex post facto, titles of nobility, BoR). These issues were never intended to be within the orbit of governmental influence. Any claim to them by government under any pretense, including amendment, is illegitimate.

The amendment process should be held to the same standard of legitimacy as the normal legislative power; the people are excluded from the process they remain at the mercy of their representatives who can only act under their limited powers. The legislature's constitutional powers cannot extend to acting in violation of the principles behind the Constitution. As Marbury v. Madison held;
    "The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. 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."

That speaks volumes about the shared responsibility for vigilance held by each branch of the government and the citizenry. All of them should be able to recognize and none of them can allow, governmental overstepping of authority. In simpler terms it states;

Those long and well established principles are fundamental. They act as the bedrock, the foundation for the Constitution and its authority, from which all governmental power is granted. But while the Constitution is supreme, the governmental power granted by it, "can seldom act," (is strictly limited and has no power to change those principles) so, those principles are designed to be permanent. The child can not change an attribute of its parent.

As I said before, I take this to mean those principles are so permanent, there is no way (even amendment) to empower the government to retroactively change them, anymore than Congress could repeal a law of physics. What would happen if Congress, in the hopes of reducing injuries and deaths from falls, were to ban gravity? A law violating a founding principle would have exactly the same effect. (only speaking of legitimate action of course)

I do not take the court's language to mean that those principles, on which our Constitution rests, are flexible or evolving, or subject to modern reconstruction or worse of all, the ignorant whims of popular opinion. 
Note also that SCOTUS makes no statement that they must speak on the law to reach that conclusion. Apparently, those principles should be known by all citizens. After all, they were once described as "self evident."

So, here's the rub. . .

Nowhere have I said that it is impossible to pass an amendment violative of the founding principles, only that it is illegitimate. We the people ordained and established this Constitution to act in certain specific ways to "form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." This assumes that the founder's posterity would hold the same principles dear as the founders did. If, in our "modern" and "enlightened" times we don't hold those principles dear and are willing to surrender to government that which was never contemplated to fall under their power, then this Constitution, as a whole, is deficient for our modern needs.

One can not say it is possible to debone this document and expect it to remain standing.
joefromchicago wrote:
Moreover, Chase's position in Calder embodied a "natural law" vision of the law that has largely been repudiated (although justices Scalia and Thomas have, at times, suggested that it is still viable).

I wouldn't characterize it as repudiated, I would say it has been ignored. In SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ___ U.S. ___ (1996), the premise seems to have reared its ugly head recently.
joefromchicago wrote:
Likewise, in West Virginia Bd. of Ed. v. Barnette, although the court correctly held that constitutional rights were not subject to legislative rescission, it was not suggesting that rights embodied in the constitution were not subject to constitutional amendment (that issue was simply not before the court).

But an amendment just repealing a provision of the Bill of Rights would not remove the right. An amendment with that intention must grant a new power to government to act upon a subject that beforehand, it was forbidden to do so. Since the Constitution does not give us our rights, there is nothing for government to "take back."

A fundamental principle (without dispute I hope) is that whatever "We the People" did not surrender, was retained.
joefromchicago wrote:
I'm not sure what those fundamental and unwavering principles might be. If, for instance, we were to hold that "one person, one vote" constitutes a fundamental premise of the constitution, then everything before the enactment of the Nineteenth Amendment would, arguably, be unconstitutional.

I mentioned above what I believe to be the elementary founding principles.
    Surf_Fish_IBSP on Sun Jan 11, 2004 12:30 pm in Post: 516474 wrote: " . . . principles of limited, delegated powers, held by a government that only keeps that power with the consent of the governed. The citizens retained everything not delegated to the government. Our rights were understood to be inherent and inalienable. That is, our rights are endowed by the Creator, not by the magistrate and that each person's natural rights are of such intrinsic value that a person, even willingly, can not surrender, relinquish or transfer their care to another person."

I recommend Federalist numbers 37, 38 and 39, all by Madison, for some insight also.

I would not consider "one person, one vote" a fundamental principle of this Republic. The founders worked very hard to dilute the will of the masses and foreclose a foothold for democracy.
joefromchicago wrote:
In other words, if a provision (or an omission) contrary to the fundamental tenets of American democracy renders the constitution "unconstitutional," then can we honestly say that the constitution has always been constitutional?

No.

The three-fifths compromise and other considerations regarding slaves were undoubtedly violative of the basic principle of all men created equal. In that regard, the 13th and 14th Amendments remedied the Constitution's inconsistencies with the founding principles. The founder's knew the Constitution was flawed in these instances and the amendment process certainly worked as envisioned in this regard.

I am resetting my preferences to cancel my e-mail notifications from here; I'll check back to read your reply (if there is one). I am very busy on other boards, I can't promise I'll reply.
0 Replies
 
joefromchicago
 
  1  
Reply Thu 15 Jan, 2004 10:14 am
Surf_Fish_IBSP wrote:
Not according to the self-appointed "welcoming committee." My reviving of this dead thread by offering my "opinion" has, in one person's assessment, hijacked it and is entirely unwelcome.

The reception, to be sure, was a bit chilly. I would note, however, that you gave as good as you got. Perhaps if we all just took some deep, calming breaths, everything would be all right.

Surf_Fish_IBSP wrote:
I place weight on Chase's opinion for two reasons. 1st, it was offered contemporaneously with the debate and ratification of the Constitution and Bill of Rights. 2nd, no rebuttal or refutation to Chase's basic premise exists in the opinion. While Justice Patterson does say, . . .

That actually is taken from Justice Iredell's opinion: unfortunately, the paragraph breaks in the FindLaw version are not very clear.

Surf_Fish_IBSP wrote:
I realize that this case discusses laws created by the regular legislative power granted to these bodies. I realize that the amendment process is of a different nature; if the process is followed the outcome is inherently "constitutional." The amendment process remains though, an action of those bodies operating under their federal constitutional authority.

All very true.

Surf_Fish_IBSP wrote:
That constitutional authority was originally granted to those bodies to be exercised in conformity with the founding principles. All legislative action is especially controlled by the clearly defined and delineated exceptions to the exercise of governmental power, (ex post facto, titles of nobility, BoR). These issues were never intended to be within the orbit of governmental influence. Any claim to them by government under any pretense, including amendment, is illegitimate.

So if a constitutional amendment is passed tomorrow, allowing for the granting of hereditary titles, that amendment would be unconstitutional?

Surf_Fish_IBSP wrote:
The amendment process should be held to the same standard of legitimacy as the normal legislative power; the people are excluded from the process they remain at the mercy of their representatives who can only act under their limited powers. The legislature's constitutional powers cannot extend to acting in violation of the principles behind the Constitution.

But the constitution explicitly permits amendments. So not even the drafters of the constitution expected that the document would remain unchanged. And given that the process of amending the constitution is, presumably, constitutional, how could something that is passed in accordance with that procedure be unconstitutional?

Surf_Fish_IBSP wrote:
As Marbury v. Madison held...

Yes, this is the second time you've referenced Marshall's opinion in Marbury. The problem, though, is that Marshall never held the same sort of "natural law" view of the constitution as was held by Chase. Even when he said that the fundamental principles embodied in the constitution were "designed to be permanent," he didn't mean that they couldn't be changed by means of amendment.

Surf_Fish_IBSP wrote:
Those long and well established principles are fundamental. They act as the bedrock, the foundation for the Constitution and its authority, from which all governmental power is granted. But while the Constitution is supreme, the governmental power granted by it, "can seldom act," (is strictly limited and has no power to change those principles) so, those principles are designed to be permanent. The child can not change an attribute of its parent.

But every generation creates the constitution anew. Indeed, because the constitution only provides a general framework for government, each generation is forced to reinterpret it. The constitution, then, is not a dead instrument, but a living document. As Marshall noted in McCulloch v. Maryland, "we must never forget it is a constitution we are expounding." Or, as Oliver Wendell Holmes stated: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

Surf_Fish_IBSP wrote:
As I said before, I take this to mean those principles are so permanent, there is no way (even amendment) to empower the government to retroactively change them, anymore than Congress could repeal a law of physics. What would happen if Congress, in the hopes of reducing injuries and deaths from falls, were to ban gravity? A law violating a founding principle would have exactly the same effect. (only speaking of legitimate action of course)

There is no method laid down by an authoritative body or document that permits anyone to repeal the "law" of gravity (ignoring, for the moment, the disparate usages of the word "law" in these contexts). On the other hand, there is a legitimate method set forth to change the constitution.

Surf_Fish_IBSP wrote:
I do not take the court's language to mean that those principles, on which our Constitution rests, are flexible or evolving, or subject to modern reconstruction or worse of all, the ignorant whims of popular opinion. 
Note also that SCOTUS makes no statement that they must speak on the law to reach that conclusion. Apparently, those principles should be known by all citizens. After all, they were once described as "self evident."

Are you advocating an "original intent" position here?

Surf_Fish_IBSP wrote:
Nowhere have I said that it is impossible to pass an amendment violative of the founding principles, only that it is illegitimate.

Of course, if you're suggesting that the ability and the right to pass an amendment are distinct, then you'd reach this conclusion. But then the constitution lays out both the ability and the right in the same section: as far as I can tell, there's nothing in the text of the constitution to indicate that they are anything but identical.

Surf_Fish_IBSP wrote:
I wouldn't characterize it as repudiated, I would say it has been ignored. In SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ___ U.S. ___ (1996), the premise seems to have reared its ugly head recently.

Well, I guess I'll have to take your word for it. I skimmed the Seminole Tribe opinions: the case involves yet another opaque dissertation by the Rehnquist Court on the deeper meaning of the 11th Amendment. Life is too short to read such impenetrable tomes.

Surf_Fish_IBSP wrote:
But an amendment just repealing a provision of the Bill of Rights would not remove the right. An amendment with that intention must grant a new power to government to act upon a subject that beforehand, it was forbidden to do so. Since the Constitution does not give us our rights, there is nothing for government to "take back."

That's largely a distinction without a difference. If an amendment were passed, permitting Congress to prohibit people from burning the American flag, then the First Amendment right formerly enjoyed by people to torch the flag would no longer exist.

Surf_Fish_IBSP wrote:
joefromchicago wrote:
In other words, if a provision (or an omission) contrary to the fundamental tenets of American democracy renders the constitution "unconstitutional," then can we honestly say that the constitution has always been constitutional?

No.

Then where do we find these fundamental tenets of American democracy, if the constitution itself does not embody them?
0 Replies
 
sothurn
 
  1  
Reply Thu 8 Apr, 2004 03:35 pm
We can effectively will away the constitution, then....
I am new to this forum and I must say I find this discussion facinating. As a gay man, it is of course a very personal issue considering the proposed anti-gay ammendment.

What I find from this discussion is that there does not seem much hope against writing into the constitution an amendment in violation of the principle of equal protection, since the new amendment would, according to those arguing here, effectively repeal the earlier protection in regards to gay people.

So the larger question raised by Surf_Fish is whether such an action would be in such violation of the "founding principles" of the constitution as to effectively be "illegitimate."

Surf_Fish_IBSP wrote:

Nowhere have I said that it is impossible to pass an amendment violative of the founding principles, only that it is illegitimate.


But, Surf_Fish, what does it mean for an amendment to be "illegitimate"? How would this play out and practical and legal terms? It does not seem that there would be any legal standing for a citizen to challenge an "illegitimate" amendment, does there? Sure, countries like France and Canada could go, "shame on you," but nothing in this country could effectively be done about it.

While the issue of the anti-gay marriage amendment controversial, the same question could be effectively applied to controversial subject. Let's say an amendment to the constitution saying, in effect, "No person with blue eyes shall be allowed to purchase property, be employed, or enter into a private contract." This amendment would obviously violate the fifth amendment and the constitution's "basic principles," and according to Surf_Fish, such an amendment would be "illegitimate," but from what has been discussed here, if such an amendment went through the amendment process, that would be that and nothing could be done.

Similarly, we could amend the constitution to amend the amendment process, could we not? And thus, we could change it to say, "the President of the U.S. shall serve a term of his or her natural life and all powers of legislature and the voting populous, including the power to amend and ratify amendments to the Constitution, shall reside with the President."

Then, once we did that, the President could write an edict to say, "all prior amendments to the Constitution are revoked; all rights and liberties shall henceforth stem from the President."

I mean - what you all are saying is, effectively, if we could get 3/4 of the legislature and 3/4 of the states to support it, we could effectively turn over all power in this country to one person, who could then effectively eliminate the constitution. It wouldn't be "legitimate," but it would be "constitutional," and thus, unstoppable.....
0 Replies
 
fishin
 
  1  
Reply Thu 8 Apr, 2004 03:57 pm
Re: We can effectively will away the constitution, then....
sothurn wrote:
I mean - what you all are saying is, effectively, if we could get 3/4 of the legislature and 3/4 of the states to support it, we could effectively turn over all power in this country to one person, who could then effectively eliminate the constitution. It wouldn't be "legitimate," but it would be "constitutional," and thus, unstoppable.....


Seems to me that you sumed it up pretty well right there sothurn.

Welcome aboard.
0 Replies
 
Setanta
 
  1  
Reply Thu 8 Apr, 2004 05:14 pm
The principle reason that i do not fear overt, unmitigated tyranny in this country is the objection i have that all conspiracies are inherently unstable and therefore almost invariably short-lived. It is my unsubstantiated and unalterable opinion the 90% or more of conspiracies are venally motivated (and what remain are usually psycho-neurotically motivated--a big tip of the hat to all you Rosicrucians and Knights Templar out there). Born in an atmospher of distrust, conspirators can never fully trust all involved to be consistently loyal to the object or the other conspirators. Crime will out is an old saw with good reason, and crime does not pay because of the caliber of intellect of the great majority of its practioners. Which, being said, leads me to legislators and chief magistrates. There are, always have been, and will always be, worldwithoutendamen, as many agendae inside the beltway as there are Representatives, Senators, President and members of the Executive, and overly self-flattered, high-level bureaucrats. To coordinate such an effort would require constantly maintaining a fiction of the necessity, and with the added personal agendae of the governments of 38 states, for whatever nonsense would be proposed within the beltway.

Yeah, it could be done, but not while the society and the polity are healthy (which they currently are essentially, despite a huge, self-inflicted financial wound) and not by the majority run of politicians we currently "enjoy." Remember, behind every conspiracy, there are more little conspiracies than you can shake a stick at.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 9 Apr, 2004 08:43 am
Re: We can effectively will away the constitution, then....
sothurn wrote:
What I find from this discussion is that there does not seem much hope against writing into the constitution an amendment in violation of the principle of equal protection, since the new amendment would, according to those arguing here, effectively repeal the earlier protection in regards to gay people.

I think that's correct.

sothurn wrote:
But, Surf_Fish, what does it mean for an amendment to be "illegitimate"? How would this play out and practical and legal terms? It does not seem that there would be any legal standing for a citizen to challenge an "illegitimate" amendment, does there? Sure, countries like France and Canada could go, "shame on you," but nothing in this country could effectively be done about it.

It's unlikely that you will get any response from Surf_Fish, whose entire corpus of posts is enclosed within the confines of this thread, and who hasn't written anything since mid-January. But I think you're right, sothurn: there can be no such thing as an "illegitimate" constitutional amendment, as long as it was passed by constitutional means.

And I'll join fishin' in welcoming you to the board, sothurn. Stick around; it looks like you have some good ideas to offer.
0 Replies
 
Builder
 
  1  
Reply Sat 12 Nov, 2011 02:06 pm
Hmmmm, reviving a very old thread, but I'm not sure where to post this info.

What do you think about the following changes to the law?

Keeping someone incarcerated against the wishes of the judiciary??

Is that right? ..and should it be applauded or shouted down?

http://youtu.be/5V4oqr5iP-g
0 Replies
 
NotreDame05
 
  1  
Reply Wed 16 Nov, 2011 08:53 am
@Surf Fish IBSP,
Surf Fish IBSP wrote:

SealPoet wrote:

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


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."
 


Quote:
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.


Why must this be accepted? This position is not only lacking textual support in the U.S. Constitution, this position is equally unsupported by the historical evidence and caselaw.

There does not exist any case, to which I am aware or have read, in which the holding of the decision was an amendment diminishing, eroding, or removing a fundamental principle in the U.S. Constitution or behind the constitution, void. Furthermore, your case of Calder v. Bull, specifically the language you cite from the opinion, does not make this point. The cited language from Calder v. Bull was in regards to laws or resolutions passed by a legislature and not amendments. Calder v. Bull was not discussing and indeed never ventured an opinion upon amending the U.S. Constitution or passing amendments to the U.S. Constitution.

Rather, the Court in Calder v. Bull was addressing the action of a state legislature, specifically whether a state law or state resolution complied with Article I, Section 10's express prohibition on states from enacting ex post facto laws. The Court in Calder never ventured an opinion as to whether the U.S. Constitution could be amended to allow states to pass ex post facto laws, and the Court never commented upon the broader consideration of whether the U.S. Constitution could be amended to diminish, erode, or completely do away with a fundamental principle in the U.S. Constitution.

It does not make sense to reference a U.S. Supreme Court decision focusing exclusively upon a state law or state resolution, passed by a state legislature, and whether this complies with the ex post facto provision in the U.S. Constitution, and deduce they have expressed an opinion about amending the U.S. Constitution at all. Discussing the validity of a state law/resolution, passed by a state legislature, is entirely different from amending the U.S. Constitution. Calder v. Bull quite simply does not support your argument.

The same criticism is applicable to Marbury v. Madison, and W.V. v. Barnette. Neither case involved the amendment process, indeed neither case discussed or involved amending the U.S. Constitution, but rather the former case involved the judiciary act passed by Congress, in other words a law passed by the national legislature, and the latter involved a policy by the state board of education pursuant to a state statute authorizing them to do so.

Quote:
I would assume this includes a ratification vote on a proposed amendment repealing a provision of the Bill of Rights)


This is a false assumption as W.V. v. Barnette was in regards to a state law and therefore, the voting commentary, when taken in context, was expressed in regards to a state legislature voting to pass a state law, and a board of education voting to enact a policy pursuant to it. As I said previously, it does not make sense to reference an opinion focusing upon a law enacted by a state legislature or congress since both are different and distinct from an amendment to the constitution.

The historical evidence also weakens your position. James Madison in Federalist Number 49 said, "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others."

James Madison places no limitation on the power and authority of the people to enlarge the powers of the government. So, presently, the federal and state governments are precluded from passing ex post facto laws. In other words, the both state and federal governments are limited to passing laws which do not constitute as ex post facto. If the people wanted to enlarge the power of both state and federal governments to permit them to pass ex post facto laws, then James Madison clearly says they can in Federalist Number 49. In other words, Madison did not qualify his remarks the people have the power to enlarge or restrict the powers of the government only so long as it does not implicate some fundamental prinicple. The authority of the people to enlarge or restrict the powers of their government is absolute and unrestrained, as Madison certainly intimates as he made no hint such a power had any limitation to it.

Indeed George Washington, when referencing the right of the people to amend their constitution, did not admit of the limitation upon this power you seek to invoke upon it. "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government." George Washington's Farewell Address. Washignton had the same opinion in 1787 when he said, "People can decide with as much propriety on the alterations and amendment [to the Constitution] which shall be found necessary, as ourselves, or I do not conceive that we are more inspired, have more wisdom or possess more virtue than those who will come after us. What is conspicuously lacking from these remarks byGeorge Washington is any hint or suggestion the power to amend the constitution is limited to those areas in which a fundamental principle is involved.

Jefferson also expressed an opinion about the power and authority of the people to amend the U.S. Constitution. "Whatever be the Constitution, great care must be taken to provide a mode of amendment when experience or change of circumstances shall have manifested that any part of it is unadapted to the good of the nation. In some of our States it requires a new authority from the whole people, acting by their representatives, chosen for this express purpose, and assembled in convention. This is found too difficult for remedying the imperfections which experience develops from time to time in an organization of the first impression. A greater facility of ammendment is certainly requisite to maintain it in a course of action accommodated to the times and changes through which we are ever passing." --Thomas Jefferson to A. Coray, 1823

"Time and changes in the condition and constitution of society may require occasional and corresponding modifications." --Thomas Jefferson to Edward Livingston

Not only do the remarks by Madison, Washington, and Jefferson lack your qualifying limitation on the power of the people to amend the constitution, it seems to me your limitation violates what they perceive as a fundamental principle, which is the power of the people to amend the constitution as they render appropriate. In other words, it is a fundamental principle the people have the power to amend the constitution in any manner they desire and your limitation is an infringement upon this fundamental principle.

Finally, if you examine the Constitutional Convention Debates of 1787, there was a rather protracted dialogue about the amendment process to the U.S. Constitution. What is interesting is nobody in the Constituional Convention of 1787, when debating, discussing, proposing, and adopting the method to amend the U.S. Constitution, ever mentioned the amendment process could not be relied upon to change, alter, diminish, reduce, or remove a fundamental principle in the U.S. Constitution. Indeed, the text of the U.S. Constitution stating the process for amending it lacks any such limitation.

So, in the end, your position lacks historical support, textual support in the U.S. Constitution, and support from caselaw.
joefromchicago
 
  3  
Reply Wed 16 Nov, 2011 09:42 am
@NotreDame05,
NotreDame05 wrote:
So, in the end, your position lacks historical support, textual support in the U.S. Constitution, and support from caselaw.

That certainly put Surf Fish in his place. Too bad he left the forum about eight years ago.
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