The House is debating a Balanced Budget Amendment to the Constitution. One member came to the floor and said that such an Amendment is “possibly unconstitutional”.
Without getting into the politics or wisdom of said Amendment, is it indeed possible for an Amendment to be unconstitutional?
I don’t think so. If an amendment comes nytadicts an older provision then it overrides.
No, by it’s very nature an amendment is a change to the Constitution. Therefore, the moment it is approved, it becomes part of the Constitution.
As answered above, though it is quite possible that the text of a proposed Amendment may unintentionally create a contradiction with other parts of the Constitution, which should have been addressed within the text of the Amendment but may not have been.
The Constitution itself does place a few restrictions on the subject of amendments.
The first part disallows any amendment banning the importation of slaves before 1808 (under the lovely euphemism “the importation of such persons as a state may deem necessary.”
The second part still applies, meaning that any amendment changing the structure of the Senate to give states unequal representation would theoretically be disallowed unless the states concerned agreed.
No. By definition, since it is part of the Constitution, it can’t be unconstitutional. That’s how we wound up with the income tax. Income taxes were declared unconstitutional by the courts. The 16th Amendment is how the government got around that problem.
I suppose you could first amend the Constitution to remove that article and then amend it to change the Senate.
It’s not clear it’s possible to sidestep it by amending it. I expect that an attempt to remove it would be challenged in court.
And there is at least one other way that an amendment could be declared unconstitutional: a court could declare the process of ratifying it flawed. For example, if Congress passed an amendment overturning the 15th and then sent it to the states to be ratified by a majority of white voters of each state, I could easily see the courts ruling the amendment unconstitutional.
You may want to be more specific about that that member said. There is a criticism that were this balanced budget amendment to pass and be ratified, there are certain programs that could no longer function in the same manner because the statutory authorities that the programs currently enjoy would become unconstitutional.
The amendment being debated would require that “Total outlays for any fiscal year shall not exceed total receipts for that fiscal year” unless a supermajority decided otherwise. It is a debatable question as to what this would mean for several trust funds. I think it’s fair to say that each trust fund has its nuances, but the general idea of a trust fund is that assets are collected in advance of when certain payments come due, because the balance of trust funds will go up and down by design.
But if revenues must match expenditures in every year, then the law defaults to it being unconstitutional to draw down a trust fund of previously accumulated balances (plus interest), unless revenues are raised to essentially pay that bill twice (i.e., there were revenues long ago put into the trust fund, but when the trust fund draws down, offsetting revenue must be raised again).
I’m not vouching for the accuracy of this criticism, as I haven’t studied the matter very much, but on its face the criticism seems reasonable.
If we’re looking at the state level, then it’s possible for a state constitutional amendment to conflict with the federal Constitution.
And in California, Proposition 8, which was a constitutional amendment, was somehow ruled unconstitutional by the state courts, though I’m not clear on exactly how that worked.
Prop 8 was an example of your first paragraph. It was ruled unconstitutional by the federal courts on equal protection grounds. On appeal to the Supreme Court, the appeal was dismissed on standing, without ruling on the merits.
Nope, an amendment can’t possibly be unconstitutional. The easiest example of this is the 21st amendment. It literally repealed part of the Constitution (the 18th amendment). Actually doing the exact opposite of what the constitution says is as unconstitutional as you can get, but the second the 21st passed, it was no longer unconstitutional. You could technically pass an amendment that required everyone to stop going to church or that forbade the press from communicating with the public or that took away the right to vote. I’m not sure how much traction such amendments would get, but if they pass, then they are immediately constitutional.
It is possible, per Article V, cited above.
I guess that’s true. You can’t have an amendment that removes the representatives of a state without their consent. So, there goes kicking out Texas. C’est la vie.
We talked about the importation of slaves before 1808 and unequal representation in the Senate but how about this one.
The Corwin Amendment was sent to the states before the Civil War and the 13th Amendment but is still eligible to be ratified. So if it does, how would it be interpreted in light of amendments submitted after it? Would parts of it (specifically considering slavery as a “domestic institution”) be considered unconstitutional? Would it make the 13th Amendment unconstitutional as the Corwin Amendment outlaws certain other amendments?
I would imagine that the standard rules of statutory interpretation would apply: try to read two laws as though they were not in conflict; and if that is not possible, the specific law trumps the general one; and if that is not possible, the last enacted law would control.
Obviously there could very theoretically be amendments that have inherent problems the SCOTUS would have to throw out.
Self-contradiction: An amendment stating that a POTUS had to be at least 50 years old but no older than 40.
Factually impossible: One declaring that 2+2=5 or that Maine is declared the southernmost state.
Outside of the realm of the constitutional authority: London is declared the capital of of the US.
Etc.
While my examples seem silly, it doesn’t take much with the braniacs writing some laws today to goof things up in more subtle, but still problematic, ways.