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  #1  
Old 10-21-2001, 12:25 AM
SenorBeef SenorBeef is offline
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I know amendments can be appealed by later amendments, however... the first 10 garuntee protection of our fundamental, innate rights from the government. Can they legally repeal the first amendment, for example, and no longer recognize our innate freedom of speech?
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  #2  
Old 10-21-2001, 12:55 AM
Daowajan Daowajan is offline
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In theory, yes, but it's highly unlikely "they" would ever do so.

If I remember Government class correctly, an amendment has to be either be declared unconstitutional by the Supreme Court or repealed as a provision in a later amendment. Remember that your amendments have to be passed as a result of a 2/3 majority in both houses of Congress. (Or maybe they have to be unanimous...)

The Supreme Court is not going to do this. Who would bring a lawsuit against the First Amendment? Wouldn't it undermine that person's right to sue, if they won?
The only exception is the Schenck v. U.S. decision, which means that in times of war, freedom of speech can be withheld. That's the "You can't yell "Fire" in a crowded theater" rule.

As we already have Schenck v. U.S., repealing the First Amendment would make no sense. What other reason is there to curb protection of speech? You don't like what you hear? Pfft. Now I'm well aware that certain brands of "free speech" have been ended because someone was offended, but since our political process is full of arguments and compromise, a movement to repeal the First Amendment in the case of offensive speech would never make it to fruition in its purest form.

Also, old Number One is one of our symbolic Hallmarks of America. Even proposing to repeal it would be political suicide. What senator or representative would ever stand up in Congress and say "We need to repeal the First Amendment?"

Hoping that made sense,
Daowajan
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  #3  
Old 10-21-2001, 12:59 AM
deltopia deltopia is offline
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Legally? Why not? The Constitution is a living document; a whole lot of the text in the articles has been rewritten by later amendments, and there was that case of repealing an amendment completely. Legally, I doubt there's any problem at all in striking out just about anything you want to rewrite.

Socially, the ten amendments have been a part of American culture for like 200 years now, and there's no freaking way that people would let any of them change. Well, maybe the 2nd one, but I doubt even that one is unpopular enough to get people to challenge the holy writ that the Bill of Rights almost is.

Since the amendment requirements for the Constitution are so arduous, I doubt we'll ever see that happen... but it's certainly possible.
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Old 10-21-2001, 01:02 AM
MEBuckner MEBuckner is offline
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The only amendments forbidden by the Constitution's amendment procedures are a.) a now obsolete prohibition on amendments to the clause of the Constitution which forbade eliminating the African slave trade before the year 1808 (after 1808, Congress soon ended the slave trade, and after the Civil War, slavery itself was abolished by the 13th Amendment); and b.) a prohibition on any amendment depriving any state of its equal representation in the Senate (i.e., no "Too Many Dakotas" Amendments).

However, Americans are sufficiently attached to the Bill of Rights, and the bar to ratifying amendments is high enough (two-thirds of both houses of Congress and the approval of three-fourths of the state legislatures) that an amendment which repealed the first ten articles of amendment to the Constitution is, to put it mildly, unlikely. Amendments which alter some part of the Bill of Rights, or "clarify" the interpretation thereof (e.g., flag desecration or school prayer amendments) are more conceivable, although thus such amendments have tended not to make it out of the Senate.

Daowajan, the Supreme Court can't declare an amendment unconstitutional. By definition, it's part of the constitution, and all they can do is rule on what it means and how it applies.
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Old 10-21-2001, 01:08 AM
Daowajan Daowajan is offline
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D'oh.
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Old 10-21-2001, 01:10 AM
MEBuckner MEBuckner is offline
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By the way, here's the text of the original seven articles of the Constitution. (Amendment procedures make up Article V.) Here are the ten articles of amendment making up the original Bill of Rights. And here are the remaining seventeen amendments to the Constitution (including nos. 18 and 21, which more or less cancel each other out).

The whole thing, original articles, Bill of Rights, and other amendments, really isn't that long--just a few pages is all, and only moderately lawyerly.
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Old 10-21-2001, 01:14 AM
DPWhite DPWhite is offline
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Sure it can. Every time someone doesn't vote, it gets closer to being repealed.
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  #8  
Old 10-21-2001, 01:21 AM
waterj2 waterj2 is offline
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As with all constitutional questions, the first place to look is in the text of the Constitution itself. In this case, Article V is the place to look. It says:
Quote:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
An ammendment is part of the Constitution, and can thus not be declared unconstitutional. It's simply impossible.

To become an ammendment, it must first pass both the House and Senate, with a 2/3 majority in each, then be ratified by 3/4 of the states themselves, using either of two methods provided in the Constitution. The first, used in all cases but one, is that the state legislatures vote on it. The second, used for the 21st Ammendment (which repealed the 18th Ammendment) involves holding conventions in the states to ratify it. The method to be used is specified in the bill that Congress passes.

Usually, Congress specifies a time period (usually seven years) during which a proposed ammendment must be ratified. The most recent ammendment (the 27th) was originally proposed before this became the practice, and sat around collecting ratifications for about two hundred years. According to [url="http://caselaw.lp.findlaw.com/data/constitution/amendments.html#f19"]Findlaw[/quote]:
Quote:
The several state legislatures ratified the proposal on the following dates: Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware, January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, February 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 28, 1985; Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah, February 25, 1986; Arkansas, March 13, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, Mary 25, 1991; Alabama, May 5, 1992; Missouri, May 5, 1992; Michigan, May 7, 1992. New Jersey subsequently ratified on May 7, 1992.
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Old 10-21-2001, 01:31 AM
waterj2 waterj2 is offline
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Also, Schenck v. US doesn't say that freedom of speech can be withheld during war. It says that speech that "a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent" can be prohibited. This is far from the only Supreme Court ruling that limits the Bill of Rights to something that some people may think it was not intended to be.
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Old 10-21-2001, 02:32 AM
SenorBeef SenorBeef is offline
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Thanks.
I was just curious if our basic innate (God given, if you prefer) rights were somehow off-limits as far constitutional amendments. Apparently not.
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Old 10-21-2001, 04:35 AM
Lao Tzu Lao Tzu is offline
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Quote:
Originally posted by SenorBeef
Can they legally repeal the first amendment, for example, and no longer recognize our innate freedom of speech?
They can legally not recognize constitutional freedoms without actually repealing the Bill of Rights. I'm sure we can all recall examples of an amendment or two getting chopped down to size, diluted from its original intent. One recent example that caught my eye was the Methamphetamine Anti-proliferation Act, a bill by Sen. Dianne Feinstein (CA), who was attempting to stem the spread of meth. The bill included a curious rider which made it a felony to "teach or distribute information on the manufacture of a controlled substance". Clearly, prohibiting discourse of this sort is contrary to the First Amendment. But the bill - had it passed (which it almost did) - probably would have set a precedent for internet censorship, paving the way for broader laws against things like porn or bomb-making websites. Who knows how far public opinion would allow such Constitutional dilutions to go...?

In the end, it doesn't require a repeal of an Amendment for it to be disregarded.

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Old 10-21-2001, 04:55 AM
Derleth Derleth is offline
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Lao Tzu: And there we have the strength and the weakness of our Constitutional tradition: Interpretation. Of course, at a basic level, everything is interpreted, even traffic laws , but Constitutional interpretation can set the stage for eras in American politics. Like the lassiez-faire Jeffersonian Era, with his strict-constructionist views (with one Notable Exception ).

And Freedom always requires the vigilant citizen to be her defender.
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Old 10-21-2001, 04:47 PM
Little Nemo Little Nemo is offline
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The bill of rights, like any other section of the Constitution, can be repealed. It just requires a constitutional amendment to do so. To give a real world example, consider flag burning. The Supreme Court has ruled that burning a flag is a form of speech protected by the first amendment. Some people are attempting to enact an anti-flag burning amendment which would have the affect of repealing this first amendment right.
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Old 10-21-2001, 05:26 PM
whitetho whitetho is offline
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Quote:
Originally posted by SenorBeef
Thanks.
I was just curious if our basic innate (God given, if you prefer) rights were somehow off-limits as far constitutional amendments. Apparently not.
Off hand I don't have cites, but I suspect that if a new amendment merely repealed the first amendment, and did not explicity say something like "Congress is not required to respect freedom of speech", the courts would continue to rule that freedom of speech etc. were fundamental rights, although I doubt they would use the term "God given".

The U.S. Supreme Court has ruled that some rights are fundamental, like the right of privacy, even if there is no explict reference to it in the Constitution. Also, even though the Equal Rights amendment was not ratified, the courts have still ruled against discrimination on the basis of sex.
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Old 10-21-2001, 05:35 PM
urban1 urban1 is offline
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Quote:
Originally posted by MEBuckner

Daowajan, the Supreme Court can't declare an amendment unconstitutional. By definition, it's part of the constitution, and all they can do is rule on what it means and how it applies.
I think I want to disagree with this, at least as far as Colorado goes.

Anyone remember Admendment 2 a few years back, which would have prohibited any adoption of laws giving gays and lesbians equal rights? Caused a hell of an uproar and a general boycott of the state.

Anyway, eventhough it passed in the general election by the majority of voters, the Colorado Supreme Court declared it unconstitutional before it could be enacted.

Another Gale Norton fiasco.
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Old 10-21-2001, 05:37 PM
urban1 urban1 is offline
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Oh, yes, in regards to the OP:

Over my dead body!
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Old 10-21-2001, 06:15 PM
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Quote:
Originally posted by MEBuckner
The only amendments forbidden by the Constitution's amendment procedures are ..... b.) a prohibition on any amendment depriving any state of its equal representation in the Senate (i.e., no "Too Many Dakotas" Amendments).
Ok, so who is designated to put the kibosh on my proposed amendment, assuming there is sufficient support for passage in the Congress and the States?
Quote:
Section 1
Beginning on the date of federal elections which next follow the adoption of this amendment, and on each election day at intervals of twenty years, the people of the several states shall chuse five states which they deem most insignificant and worthy of scorn. Upon selection, no Senator from such a state may be sworn in if such action would result in more than one Senator for that state.

Section 2
This amendment would not prohibit any existing Senator from serving the remainder of his term of office.

Section 3
A selected state which is not selected in the subsequent twenty-year election may resume its representation in the Senate in such a way that the term of office shall begin not less than twenty years after that state’s second Senate seat was vacated.
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Old 10-21-2001, 06:25 PM
Menocchio Menocchio is offline
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Quote:
Originally posted by urban1
Quote:
Originally posted by MEBuckner

Daowajan, the Supreme Court can't declare an amendment unconstitutional. By definition, it's part of the constitution, and all they can do is rule on what it means and how it applies.
I think I want to disagree with this, at least as far as Colorado goes.

Anyone remember Admendment 2 a few years back, which would have prohibited any adoption of laws giving gays and lesbians equal rights? Caused a hell of an uproar and a general boycott of the state.

Anyway, eventhough it passed in the general election by the majority of voters, the Colorado Supreme Court declared it unconstitutional before it could be enacted.

Another Gale Norton fiasco.
Umm... Was Amendment 2 to the CO constitution, or to a law? Both of those could be overturned by the SOCAS (the Federal Constitution trumps anything the states do). I'd suspect that the CO court stated that Amendment 2 was unconstitutional in respect to the US constitution, not Colorado's.

We're talking about amendments to the US constitution, which, by definition, are constitutional (unless the process unless they were ratified was somehow unconstitutional, in which case it was never really an amendment in the first place).

So, to the OP, no, unless they were negated by subsequent amendments. In a more practical sense, a string of really bad SOCAS decisions could render them useless, at least until a wiser court reversed them.
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Old 10-21-2001, 06:42 PM
urban1 urban1 is offline
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In my previous post: It was an ammendment to the Colorado constitution. It didn't get the US Supreme court so I believe that it was determined to be unconstitutional under the Colorado constitution.

But: If all ammendments to the US constitution are constitutional, does that mean that 2/3rds of both houses and 3/4th of the states could pass a constitutional ammendment allowing slavery? Or something equally reprehensible?

Bob
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Old 10-21-2001, 06:44 PM
SCSimmons SCSimmons is offline
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Quote:
Originally posted by MEBuckner
... and b.) a prohibition on any amendment depriving any state of its equal representation in the Senate (i.e., no "Too Many Dakotas" Amendments).
But darn it, there are too many Dakotas!!
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Old 10-21-2001, 06:46 PM
MEBuckner MEBuckner is offline
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Quote:
Originally posted by whitetho
The U.S. Supreme Court has ruled that some rights are fundamental, like the right of privacy, even if there is no explict reference to it in the Constitution. Also, even though the Equal Rights amendment was not ratified, the courts have still ruled against discrimination on the basis of sex.
I don't think the Supremes have ever just flat out made up a right out of whole cloth, with no reference to any Constitutional provision. (I mean, various opponents of this or that political idea have accused them of doing that, but the Court has always had at least some theoretical Constitutional justification for its actions.) For instance, the "right to privacy" was found, IIRC, in the "penumbras" of various other explicit Constitutional provisions.

So, just whacking the First Amendment might not be enough to do away with a right--there's also the Ninth and Tenth Amendments and the Fourteenth Amendment and so on. But, if you went through and systematically whacked every clause or amendment which contributed to the "penumbras" surrounding a right, there wouldn't be anything the Court could do, except maybe resign en masse. Theoretically, you could declare the Church of Bucknerism to be the state religion and mandate that all heretics from orthodox Bucknerism be burned at the stake, and if you were sufficiently thorough with your amendments in expunging the Constitution of un-Bucknerist ideas and you could get two-thirds of both houses of Congress and three-fourths of the state legislatures (or three-fourths of the ratifying conventions called in each state, if that's how Congress specified the amendment be considered) to buy it, the Supreme Court couldn't do jack. For that matter, I suspect that an amendment which simply stated "anything else in this Constitution to the contrary notwithstanding" would settle the matter, whatever the matter might be. Also, an amendment which simply stated "there is no right to privacy" (or, more realistically, which outlawed abortion) would trump any "penumbras" or court decisions or precedents.

Conceivably, if the framers of the amendment got too cute with the wording, an unsympathetic court might wiggle out of it and send them back to the drawing board--if you said "abortion shall be illegal", that's kind of hard to ignore; if you said "all laws of the United States must respect the sanctity of human life", that might still be open to interpretation. I think most proposed anti-abortion amendments talk about human life beginning at conception, and maybe even guarantee equal rights to the unborn, without actually using the words "abortion is henceforth against the law". That would probably still be pretty hard for a pro-choice court to wiggle out of.
Quote:
Originally posted by urban1
Quote:
Originally posted by MEBuckner
Daowajan, the Supreme Court can't declare an amendment unconstitutional. By definition, it's part of the constitution, and all they can do is rule on what it means and how it applies.
I think I want to disagree with this, at least as far as Colorado goes.

Anyone remember Admendment 2 a few years back, which would have prohibited any adoption of laws giving gays and lesbians equal rights? Caused a hell of an uproar and a general boycott of the state.

Anyway, eventhough it passed in the general election by the majority of voters, the Colorado Supreme Court declared it unconstitutional before it could be enacted.

Another Gale Norton fiasco.
Remember, we're talking about the U.S. Constitution, not a state constitution. This is especially important as I suspect the Colorado Supremes did in that amendment because they held it violated provisions of the U.S. Constitution. The U.S. Constitution is the "supreme law of the land" and trumps any state constitution if the two conflict.
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Old 10-21-2001, 06:49 PM
deltopia deltopia is offline
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Quote:
Originally posted by Whitetho:
Off hand I don't have cites, but I suspect that if a new amendment merely repealed the first amendment, and did not explicity say something like "Congress is not required to respect freedom of speech", the courts would continue to rule that freedom of speech etc. were fundamental rights, although I doubt they would use the term "God given".
I am sure I read somewhere (and maybe one of you polymaths out there can verify the truth of this) that the reason the Bill of Rights is in amendment format is that some of the original 13 wouldn't ratify the original Constitution unless these rights were specifically ennumerated. The original framers (Thomas Jefferson is the name that comes to mind, but unsure) thought that the rights were implicit in the original text, but the Bill just assured that they were explicit, instead.

Re the Supreme Court's powers: Each of the three primary branches of government has checks and balances against the other two. The Supreme Court can strike down a law passed by Congress by declaring it unconstitutional, but Congress can trump that ace by making the law a part of the Constitution (as an amendment). Much in the same way, the president can veto a law passed by Congress, but they can trump that by getting a two-thirds majority.

At least, that's my understanding. Any corrections from people who remember U.S. History class better than I do?
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Old 10-21-2001, 06:55 PM
MEBuckner MEBuckner is offline
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Quote:
In my previous post: It was an ammendment to the Colorado constitution. It didn't get the US Supreme court so I believe that it was determined to be unconstitutional under the Colorado constitution.
a.) State Supreme Courts can still make reference to the U.S. Constitution, which is what the Colorado Supreme Court did; the amendment to Colorado's state constitution was struck down on the grounds that it violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

b.) The CSC decision was upheld by the SCOTUS. See Romer v. Evans

Quote:
But: If all ammendments to the US constitution are constitutional, does that mean that 2/3rds of both houses and 3/4th of the states could pass a constitutional ammendment allowing slavery? Or something equally reprehensible?
Yep. That's what it means. You can't whack the Senators from one of the Dakotas, but you can declare that all women have to wear burqas and can no longer vote, and if enough people agree with you (or aren't paying attention), then that's that.

Fortunately, it's a difficult process to pass any constitutional amendment.
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Old 10-21-2001, 07:09 PM
lucwarm lucwarm is offline
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I remember when I was in religious school in the 70s, they showed us a documentary film about the American Nazi Party. Anyway, the chief Nazi indicated that their plan was to have certain of the Bill of Rights repealed so that they could effectuate their plan of taking control of the country, round up Jews, etc. In hindsight, I wonder if the film was a hoax of some sort, but I believe that the head Nazi was correct to a certain degree. (And yes, the courts might not allow anyone to repeal the bill of rights, even though it's technically possible)
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Old 10-21-2001, 10:40 PM
Otto Otto is offline
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Quote:
In my previous post: It was an ammendment to the Colorado constitution. It didn't get the US Supreme court so I believe that it was determined to be unconstitutional under the Colorado constitution.
Romer v Evans 517 US 620 (1996) was decided by the United States Supreme Court. In a 6-3 decision, the Court found that Amendment 2 violated the United States Constitution's 14th Amendment, specifically its prohibition on unequal representation. The Colorado state constitution did not figure into the case, as--as has been noted--an amendment to a constitution is automatically constitutional.
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Old 10-21-2001, 10:42 PM
Otto Otto is offline
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Quote:
prohibition on unequal representation.
Should read prohibition on unequal protection of the laws.
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Old 10-21-2001, 11:36 PM
Northern Piper Northern Piper is offline
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Quote:
Originally posted by urban1
But: If all ammendments to the US constitution are constitutional, does that mean that 2/3rds of both houses and 3/4th of the states could pass a constitutional ammendment allowing slavery? Or something equally reprehensible?

Bob
Sure they could. In fact, Congress put forward just such a proposal in 1861, in a last ditch effort to prevent the Civil War.

The House of Representatives website has a page of Unratified Constitutional Amendments, which has this to say:
Quote:
The following amendment to the Constitution relating to slavery was proposed by the 2d session of the Thirty-sixth Congress on March 2, 1861, when it passed the Senate, having previously passed the House on February 28, 1861. It is interesting to note in this connection that this is the only proposed (and not ratified) amendment to the Constitution to have been signed by the President. The President's signature is considered unnecessary because of the constitutional provision that on the concurrence of two-thirds of both Houses of Congress the proposal shall be submitted to the States for ratification.

Quote:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said Legislatures, shall be valid, to all intents and purposes, as part of the said Constitution, viz:

"Article Thirteen

"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."
The web site doesn't say how many states, if any, ratified this amendment before the Civil War really got going. If it had been ratified, then state laws permitting slavery would have been untouchable, just like the "2 Senators" rule.
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Old 10-22-2001, 12:31 AM
Otto Otto is offline
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The web site doesn't say how many states, if any, ratified this amendment before the Civil War really got going. If it had been ratified, then state laws permitting slavery would have been untouchable, just like the "2 Senators" rule.
Let's say it had been ratified. What would then stop a later Congress from proposing an amendment repealing it? For that matter, if the Constitution were amended to remove the "two senators" rule, then why would that amendment not have full legal force?

And I apologize for posting the Romer cite again. The earlier cite didn't show in the thread when I pulled it up the first time.
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Old 10-22-2001, 12:47 AM
Derleth Derleth is offline
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Quote:
Originally posted by Otto
Quote:
The web site doesn't say how many states, if any, ratified this amendment before the Civil War really got going. If it had been ratified, then state laws permitting slavery would have been untouchable, just like the "2 Senators" rule.
Let's say it had been ratified. What would then stop a later Congress from proposing an amendment repealing it? For that matter, if the Constitution were amended to remove the "two senators" rule, then why would that amendment not have full legal force?

And I apologize for posting the Romer cite again. The earlier cite didn't show in the thread when I pulled it up the first time.
Nothing, really, but 2/3 of the states would also have to go along, and that could have sparked a Civil War.
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Old 10-22-2001, 03:15 AM
Otto Otto is offline
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So I looked at the "two senators" bit of Aticle V and it says
Quote:
provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
So it looks like a state could be deprived of one or more of its senators by amendment, as long as the state in question was one of the states voting to ratify the amendment.

Or, the Constitution could be amended to eliminate the last clause of Article V ("and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.") and could then add and subtract Senators by simple passage of laws.

Of course, the likelihood of either of these eventualities coming to pass, if anything can truly be measured to equal zero, is zero, so functionally it's an impossibility.
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Old 10-22-2001, 07:32 AM
sailor sailor is offline
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A new state could be admitted (DC?) with the provision it have only one senator, or no senator, and that would be constitutional.
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Old 10-22-2001, 02:14 PM
Northern Piper Northern Piper is offline
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Originally posted by deltopia
I am sure I read somewhere (and maybe one of you polymaths out there can verify the truth of this) that the reason the Bill of Rights is in amendment format is that some of the original 13 wouldn't ratify the original Constitution unless these rights were specifically ennumerated. The original framers (Thomas Jefferson is the name that comes to mind, but unsure) thought that the rights were implicit in the original text, but the Bill just assured that they were explicit, instead.
There was some debate on the issue of a Bill of Rights at the Philadelphia Convention. George Mason, one of the Virginia delegates and the father of the Virginia Bill of Rights, moved that one should be included in the federal Constitution, but was voted down. For a short summary, go to this article in the Smithsonian Magazine: George Mason.

The lack of a Bill of Rights was one of the criticisms levelled against the new Constitution by some opponents. Although there was no formal "quid pro quo" of a promise of a Bill of Rights in exchange for ratification, some supporters of the Constitution argued that the new Congress could consider whether a Bill of Rights should be added. I believe that Madison took this approach, and subsequently was instrumental in the First Congress in the effort to establish a Bill of Rights.

Hamilton, by contrast, argued that no Bill of Rights was needed, for two reasons. In Federalist No. 84, he advanced two counter-arguments.

First, he argued that the proposed Constitution already contained several guarantees of individual liberty
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To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.'' Section 9, of the same article, clause 2 "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.'' Clause 3 "No bill of attainder or ex-post-facto law shall be passed.'' Clause 7 "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.'' Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.'' Section 3, of the same article "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.'' And clause 3, of the same section "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.''
He also advanced a second argument, that a Bill of Rights was unneeded because the enumeration of federal powers did not include the power to invade individual liberties. In essence, the Bill of Rights was implied:
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I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Note that one might ask whether Hamilton's two arguments are contradictory.

Perhaps this approach is what you were thinking of, deltopia?

[quibble]Jefferson was not one of the drafters of the Constitution. He obviously was an influential thinker, having been governor of Virginia at the time Virginia adopted its Bill of Rights, but he was not an actual participant at Philadelphia - he was American Minister in France at the time. [/quibble]
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  #33  
Old 10-22-2001, 02:58 PM
Northern Piper Northern Piper is offline
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Originally posted by sailor
A new state could be admitted (DC?) with the provision it have only one senator, or no senator, and that would be constitutional.
I'm not sure that I'd agree with that, sailor, although I admit that the matter is not free of doubt.

Congress's power to admit new states is found in Article IV, Section 3
Quote:
New states may be admitted by the Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, without the consent of the legislatures of the states concerned, as well as of the Congress.

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
The original wording of the clause in the Committee of Detail of the Philadelphia Convention expressly stated that new states would be admitted on terms of equality. Gouverneur Morris, one of the delegates and a member of the Committee, objected to that approach and argued that new territories should not be admitted on terms of equality, but should be governed as provinces by the original United States. He thought that the clause should make it clear that the provision should "... be so fixed as to secure to the Atlantic States a prevalence in the National Councils" (Farrand, The Framing of the Constitution of the United States, pp. 109, 205). In the end, the clause took the compromise form that is in the Constitution, not addressing the issue directly.

Admittedly, this provision does not outline the issue of terms and conditions for admission, but I would argue that it must be read consistently with Article II, section 3, which reads:
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The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.
The significant point is that both provisions use the word "state." Once a new state is admitted, the Constitution says what rights it has, including the right to have two senators. There is a general principle of interpretation that a word has the same meaning throughout a legislative document. If there were to be two classes of states, one class having a right to two senators, and the other only having a right to whatever Congress gave it, then you would expect to have language to that effect.

Another point is that the same provision of the Constitution also gives the Congress the power to govern territories not part of any state. Since the Constitution distinguishes between states and territories, it is difficult to argue that there is more than one class of states. The Constitution recognises two categories: states and territories. States have equal powers, territories are under federal jurisdiction. There is no language supporting the idea of a third category, states with less powers than the original states.

This argument is also strengthened by the fact that equal representation in the Senate was such an important part of the original debates at Philadelphia. Given the importance of equal Senate representation, I think it would be very unlikely that Congress could create different classes of states.

Finally, the practice over the past two centuries must be taken into account. Congress has never admitted a state on unequal terms. Although Congress's views of its consitutional authority are obviously not binding on the Supreme Court, the unbroken practice can be taken as an implicit indication that Congress does not view its power to admit states as including the power for unequal terms. That is a factor that the Court could take into account if the issue ever arose.
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Old 10-22-2001, 06:55 PM
Northern Piper Northern Piper is offline
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Originally posted by Otto
Let's say it had been ratified. What would then stop a later Congress from proposing an amendment repealing it? For that matter, if the Constitution were amended to remove the "two senators" rule, then why would that amendment not have full legal force?
Otto, this is one of the logical puzzles that comes up from time to time in constitutional law: the self-referring constitutional proposition. Germany, if I recall correctly, also has some provisions in their Constitution which cannot be repealed.

The logicians and the constitutional scholars have dithered over the issue of non-repealable constitutional provisions, without reaching much of a conclusion beyond the idea that it is normally a political question, although in extreme cases there may be scope for judicial review.

Clearly, as a practical matter, any constitutional provision can be repealed or ignored, if there is sufficient political will. The original Articles of Confederation are one of the best examples. The Confederation was perpetual and could not be amended except by the unanimous consent of the Congress and all the State legislatures (Article XIII,) nor could any two states or more states make a compact among themselves without permission of the Congress (Article VI). Yet the delegates to the Philadelphia Convention did just that: they proposed a new form of union, not based on the Articles of Confederation, and which was based on the principle of amendment by majority rather than unanimity. Although the new Constitution was contrary to the Articles, it was adopted by enough states that it replaced the Articles.

However, assuming that there is not wide-spread political will in favour of ditching the current Constitution and it remains widely accepted, then I would think that the courts would have the authority to review purported constitutional amendments that went clearly contrary to the "2 senators" rule. I agree with the comments by earlier posters who say the courts cannot review the constitutionality of constitutional amendments, but that statement pre-supposes that the amendments in question were passed in conformity with the amending formula. Although the courts have normally said that the amending process is primarily a political question, I would think that in an extreme case of failure to comply with the formula they would feel able to step in.

For instance, suppose that the House and the Senate unanimously passed a purported amendment to the Constitution, but did not send it to the states for ratification, instead asserting that they had the right to amend the Constitution unilaterally. That is a purported constitutional amendment, but I would wager that the federal courts would feel able to assess the validity of the amendment - it would be so clearly outside the amending formula that it simply wouldn't count as a constitutional amendment.

Repealing the "2 senators" rule, either directly or by means of an amendment to the amending formula in Article V, would likely be similarly subject to judicial review. It would be so far outside the scope of the amending formula, in fact clearly contrary to it, that I would think the courts would feel they could review it, as outside the scope of their normal deference to the political actors.

All of this is just my speculation, of course. We'll just have to wait and see if it ever happens.
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  #35  
Old 10-22-2001, 07:31 PM
slipster slipster is offline
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The Supreme Court cannot declare an amendment unconstitutional. If an amendment is adopted, then it is part of the constitution and, so, by definition, constitutional.

As the U.S. Constitution is the supreme law of the land, Congress cannot pass a law nullifying a part of it.

It is, however, possible to nullify a part of the Constitution by adopting a new amendment that has that effect. It has already happened; there was an amendment instituting Prohibition, and one abolishing it.

The U.S. Supreme Court has determined that flag burning is protected under the First Amendment's guarantee of free speech. The Court may at some future time reverse this opinion, thus affecting what is permitted under the Constitution without it having been amended. This has happened numerous times in the past; for instance, the Court long ago abandoned its finding in Dred Scot II that The Bill of Rights was not intended to apply to people of African descent.

Rather than wait and hope for the Court to reverse itself, some people advocate an amendment banning flag-buring. Advocates of an anti-flag burning amendment are, in effect, attempting to nullify what is currently understood to be a part of the freedom of speech guaranteed under the First Amendment and, assuming a properly worded amendment about flag burning was adopted, the amendment would have that effect regardless of how the Court intereprets the First Amendment since the new amendment would have been adopted after the First Amendment.

The Constitution provides two methods for adopting amendments the Constitution. The first method, which involves a slow and laborious process of ratification by the states, is the only one which has ever been used. The Constitution also provides, however, that a new Constitutional Convention could be held.

Pro-choice advocates sometimes express fear that if a convention was ever convened with the aim of producing a Right to Life amendment, it could have all sorts of dire, unexpected consequences. At a convention anything would be fair game, and so, for instance, the Constitution could be rewritten so that the First Amendment would grant freedom of speech to only the "right" kind of opinions, or freedom of religion to the "right" sort of faith.
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