What are your thoughts on the idea of an unconstitutional constitutional amendment?

Futurist

Ad Honoris
May 2014
24,534
SoCal
I recently wrote this Wikipedia article about the idea of an unconstitutional constitutional amendment:


Basically, the idea that there are limits to the constitutional amendment power--both explicit ones and implicit ones--has a very long history. For instance, the US Constitution explicitly forbade the US Congress from abolishing the slave trade to the US until 1808--including the passage of a new US constitutional amendment that would have given the US Congress this power before 1808. However, in addition to explicit limits on the constitutional amendment power, there has also been the idea of implicit limits to this power. For instance, in 1893, former Michigan Supreme Court Chief Justice Thomas M. Cooley argued that constitutional amendments need to be harmonious with most other parts of the constitution and cannot be revolutionary; thus, in Cooley's opinion, a constitutional amendment that would have transformed the US into a monarchy or an aristocracy would have been unconstitutional. Outside of the US, various courts have indeed embraced this doctrine. For instance, while the Indian Supreme Court initially (in 1951) rejected the idea that there can be an unconstitutional constitutional amendment, it changed its mind in regards to this in the 1960s and 1970s and thus embraced this idea.

Anyway, what are your own thoughts on this? For instance, do you agree that there can be implicit limits to the constitutional amendment power? Also, if there is an explicit limitation on the constitutional amendment power, do you think that this limitation should be read as narrowly as possible? So, for instance, if the 14th Amendment would have explicitly declared itself to be unamendable, and a new US constitutional amendment would have hypothetically been passed that would have reversed the 1973 Roe v. Wade ruling (that used the 14th Amendment to legalize early-term abortion nationwide in the US), do you think that the US Supreme Court should have declared this new US constitutional amendment to be unconstitutional? Or do you think that SCOTUS should reinterpret the 14th Amendment and reverse its Roe v. Wade ruling in this scenario in order to make the 14th Amendment compatible with this new US constitutional amendment?

Also, what are your thoughts about the idea of this doctrine being abused? For instance, if, sometime during the late 19th or early 20th centuries, the US Supreme Court would have embraced the unconstitutional constitutional amendment doctrine and thus struck down some or all of the Reconstruction Amendments (13th, 14th, and 15th Amendments) to the US Constitution? Would you have viewed this as a legitimate exercise of the US Supreme Court's power? Or would you have viewed such a US Supreme Court action as being lawless and completely unacceptable?

Any thoughts on all of this?
 

Futurist

Ad Honoris
May 2014
24,534
SoCal
Also, for what it's worth, this issue began being debated long before 1991 and thus one would think that discussing this issue would be acceptable here.
 

stevev

Ad Honorem
Apr 2017
3,810
Las Vegas, NV USA
Perhaps it should be true that the amendment process be constrained in some way. For example, you can't repeal the Bill of Rights with an amendment. However the Constitution does not impose any limits on the amendment process regardless of what some might opine. The founders made it difficult: 2/3 of both houses of Congress and 3/4 of the states to pass an amendment. They probably would be surprised to know it lasted this long with just 27 amendments including the 10 amendments in the Bill of Rights.
 
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sculptingman

Ad Honorem
Oct 2009
3,693
San Diego
I don't think you can have an amendment that Undoes any specific article of the core constitution.
Those were defined as the minimal rules for self government under rule of Law.

However- ALL of the amendments, it seems to me, are up for grabs as evidenced by prohibition and the repeal of prohibition.


some amendments tread a narrow line- for example- granting women the vote.
It was argued that this does not UNDO any article in the constitution- it simply broadens the definition of "man" to include all adults.

Where we benefit is by the purposely non-specific broad brush language that forms the core articles.

The most recent challenge would be the idea that we can UNDO the electoral college by amendment.

I don't think we can- however- we COULD make an amendment that specifies in detail how the electoral college works in a way that would strip from states their current power to define it on their own- for example- forbid winner take all electoral assignment. that would make the electoral college better reflect that actual popular vote.
 
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Chlodio

Forum Staff
Aug 2016
5,097
Dispargum
Most of the amendments after the first ten alter or undo the original Constitution in some respect.

The 15th, 19th, 24th, and 26th Amendments alter (reduce) the power of states to decide who can vote in federal elections. The original language said "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature ." In other words the states decided who could vote both in state and federal elections.

The original Constitution said the vice president was the man who came in second in the election until this was changed by the 12th Amendment. The original Constitution recognized the right to own slaves until the 13th Amendment. The 3/5 clause was repealed by the 14th Amendment. The Constitution said that senators would be chosen by their state legislatures until this was changed by the 17th Amendment. The founders probably intended for the District of Columbia to not vote in federal elections but then the 23rd Amendment changed that. Etc.
 
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Chlodio

Forum Staff
Aug 2016
5,097
Dispargum
If the political will exists to turn the US into a monarchy, that will is probably strong enough to throw out the whole Constitution and start over again from scratch.

If the opponents of abortion have the political clout to pass an amendment, they should pass one that outlaws abortion, not one that repeals the 14th Amendment. Amendments have been used on at least two occasions to overturn Supreme Court decisions - the 14th overturned Dred Scott on citizenship, and the 16th overruled the SC on income taxes. I think the 19th also overruled the SC.
 
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betgo

Ad Honorem
Jul 2011
6,766
The original 13th Amendment, which was passed by Congress but not ratified, banned certain Constitutional Amendments.

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State
 

Futurist

Ad Honoris
May 2014
24,534
SoCal
The original 13th Amendment, which was passed by Congress but not ratified, banned certain Constitutional Amendments.

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State
Interestingly enough, though, this amendment did not make its amendability unamendable. Thus, one could first pass a constitutional amendment that would allow for a new constitutional amendment to give Congress the power to ban slavery and then pass another constitutional amendment that would actually give Congress the power to ban slavery. Of course, if one wanted to make things easier, one could pass a new constitutional amendment that would have given the US President and/or the US judiciary the power to ban slavery.
 

Futurist

Ad Honoris
May 2014
24,534
SoCal
If the political will exists to turn the US into a monarchy, that will is probably strong enough to throw out the whole Constitution and start over again from scratch.
Agreed. A more interesting question, of course, would be if the US is transformed into a monarchy via a constitutional amendment only for this amendment to subsequently lose a lot of its public support (albeit not up to the point of being able to pass a new constitutional amendment to repeal this one) and thus have this amendment be eventually struck down by the US Supreme Court as being unconstitutional.

If the opponents of abortion have the political clout to pass an amendment, they should pass one that outlaws abortion, not one that repeals the 14th Amendment. Amendments have been used on at least two occasions to overturn Supreme Court decisions - the 14th overturned Dred Scott on citizenship, and the 16th overruled the SC on income taxes. I think the 19th also overruled the SC.
Obviously anti-abortion activists shouldn't aim to repeal the entire 14th Amendment. However, they will have to "repeal" the implicit part of the 14th Amendment that deals with abortion. In other words, if SCOTUS reads the 14th Amendment as creating a constitutional right to abortion, and the 14th Amendment was unamendable, then reversing Roe v. Wade by a constitutional amendment should be forbidden since it would nullify an implicit right that the 14th Amendment contains. Of course, one could get around this obstacle by having courts reinterpret the 14th Amendment in such a way that it would not create a constitutional right to abortion--thus reversing Roe v. Wade. This would make the new amendment reversing Roe v. Wade legally redundant, but at least this would allow courts to avoid declaring this new amendment to be unconstitutional.

Most of the amendments after the first ten alter or undo the original Constitution in some respect.

The 15th, 19th, 24th, and 26th Amendments alter (reduce) the power of states to decide who can vote in federal elections. The original language said "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature ." In other words the states decided who could vote both in state and federal elections.

The original Constitution said the vice president was the man who came in second in the election until this was changed by the 12th Amendment. The original Constitution recognized the right to own slaves until the 13th Amendment. The 3/5 clause was repealed by the 14th Amendment. The Constitution said that senators would be chosen by their state legislatures until this was changed by the 17th Amendment. The founders probably intended for the District of Columbia to not vote in federal elections but then the 23rd Amendment changed that. Etc.
Cooley's argument wasn't that changes are not allowed; rather, his argument was that changes that are extremely fundamental are not allowed--such as transforming the US from a republic to an oligarchy or a monarchy.

If the political will exists to turn the US into a monarchy, that will is probably strong enough to throw out the whole Constitution and start over again from scratch.
Yes, which shows that the unconstitutional constitutional amendment doctrine can only delay change rather than completely prevent change. However, the unconstitutional constitutional amendment doctrine does have another purpose--specifically to get rid of amendments that have lost a lot of their public support but in regards to which the public lacks the necessary support to pass a new constitutional amendment to repeal these amendments (since blocking a constitutional amendment is much easier than passing one). So, for instance, if a new constitutional amendment would pass that would limit the scope of the 2nd Amendment only to have this amendment subsequently lose a lot of public support (albeit not enough to actually pass and ratify a new constitutional amendment to repeal that one) could theoretically eventually get struck down by the US Supreme Court as being unconstitutional if this court will so desire. This power could actually be abused. For instance, theoretically speaking, at the time that US race relations were at their nadir at the start of the 20th century, an aggressive, activist US Supreme Court could have theoretically struck down the 14th and/or 15th Amendments to the US Constitution on the grounds that they are unconstitutional. This 1910 article actually expresses openness to this argument in regards to the 15th Amendment:

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