I’m putting this in GD because the factual question above is easily answered. (Yes, if such an amendment got passed, there’s nothing explicitly saying it would be invalid.) I’m looking more for the ramifications of this kind of recursion on a self-sustaining system of governance. (Sorry, I’ve been reading too much Douglas Hofstadter lately.)
Anyway, there was a recent thread in GQ about the potential repealment of the Bill of Rights. I want to take that one step further. On the other thread, MEBuckner says the following:
Given that, can the Constitution be amended so that no future amendments are possible? Is this prohibited by implication, as was found to be the case with secession? Here’s an excerpt from an essay by Peter Suber entitled, “Paradox of Self-Amendment in Constitutional Law”:
Suber goes on to characterize rules of law which may not be revoked or amended as “immutable,” and states:
(A central element of democratic theory is given up, by the way, because Suber posits that certain rules of procedure may be self-entrenched–made immutable–in order to safeguard democratic liberties such as equal protection or due process.)
He argues that “law can tolerate paradox but cannot tolerate immutability.” Do you agree? Would a democratically-passed amendment disallowing future constitutional amendments be inherently intolerable in a coherent system of law?
It’s going well; I don’t have Con Law till the spring.
For some godforsaken reason, I actually have been reading too much Douglas Hofstadter lately. On my own time. 'Cause, y’know, law school doesn’t give me anything else to do…
Answer the OP, Sua, or I’ll 12(b)(6) your ass so fast it’ll petitio your principii!
And yeah, I am aware that this sentence is meaningless gibberish.
“All things are words in some strange tongue, in thrall
To Someone, Something, who both day and night
Proceeds in endless gibberish to write
The history of the world . . .” --Jorge Luis Borges
Yeah, Maeglin, but you’re made of sterner stuff than most.
Well, I don’t do both at once[sup]*[/sup]–unlike James Garfield, of whom it was said that he could write in Latin with one hand while writing in Greek with the other–but I do take your meaning. Thanks.
And sob won’t someone take a stab at the OP? Or must I wait for 2sense to tell us what he thinks of the Constitution, and derail the thread for good?[sup]**[/sup] All’s I ask is a little substance! Is that too hard?
[sub][sup]*[/sup]Damn, but law school has made me pedantic. And don’t say it…
[sup]**[/sup]You know I love ya, sensey.[/sub]
I think such an amendment could be passed and be valid as you say. But it would be meaningless because there would be nothing to stop a Congress, or some other accepted legislative body, from substituting a new Constitution, identical to the original but for the fact that it contains some desired amendment.
IMHO, legal folks often get caught up in the technical aspects of legal issues, and overlook the fact that ultimately, at its core, power is derived not from legal documents but from acceptance by the people (or, more importantly, by the people who have the guns).
Except the new Constitution would be unconstitutional under the terms of the old. As was essentially done, incidentally, when the Articles of Confederation were replaced by the Constitution itself (the process of doing so was technically prohibited under the Articles).
I don’t quite think such an amendment would be meaningless, though–I’d argue that it’s even more difficult as a practical matter to toss the Constitution than to amend it (which is itself plenty difficult).
Well, consent and legitimacy generally do an interesting little dance. That’s why I’m presuming in this instance that consent exists to confer legitimacy upon a document which, in effect, freezes future consent under the existing system of law.
I agree that as a practical matter it might make a difference (though it’s hard to say what would happen in a bizarre scenario such as you envision). But as I understand it, you are asking a theoretical question rather than a practical one. This, I think, is meaningless. Because the ultimate authority of a constitution is it’s acceptance, and a constitution on its own has no standing whatsoever, all theoretical questions about paradoxes etc. are moot. The constitution might get amended despite the lack of “authority” to do so, and if it does not get amended it will not be due to this lack of “authority”.
So–if I’m reading you right–you agree with Suber that “law can tolerate paradox but cannot tolerate immutability.” Seems perfectly sensible to me. Anyone disagree?
Allow me to be the first lawyer to mention ye olde “political question” doctrine. That’s when the courts throw up their hands and say it ain’t their call, with the subtext being that the judges are scared to death of answering whatever the question happens to be.
My other answer is that the Supreme Court has already decided that Congress is the sole judge of when and whether an amendment has gone into effect. There was some question about that when the 27th amendment finally got ratified 200 years after it was introduced. No court has considered its validity, yet it’s been universally acknowledged to be in effect since Congress said yeah, it’s in the Constitution.
I’m surprised no one has yet mentioned the Corwin Amendment, proposed right before the Civil War. It was an “unamendable amendment,” guaranteeing the eternal existence of slavery in places where it already was, without the possibility of removing it through future amendment. Despite support from Lincoln, it was approved by only two states. Perhaps some legal opinions from the time commented upon its validity?
Probably not. One of the first principles the Supreme Court decided was that courts (at least the federal ones) are not permitted to issue “advisory opinions.” Unless there’s a real controversy between real parties, courts can’t weigh in to say whether or not something would be legal.
We chatted about it in the other threadGadarene mentioned.
I don’t have much to add to what I said in that thread, Gadarene - you’ve obviously read Hofstader much more recently than I have, and have retained more. I feel old
However, I can add that in the Commonwealth countries, there are occasionally “manner and form” restrictions on amendments on ordinary legislation, imposed by sovereign legislatures on themselves, which raise similar issues. (E.g. - “This Act, passed by ordinary majorities, can only be repealed by two-thirds votes of both chambers of the Legislature.”)
On the one hand, the courts have generally upheld “manner and form” restrictions, on the basis that the Legislature controls its own processes, including voting requirements.
On the other hand, there’s the general constitutional principle that Parliament cannot bind its successors. As far as I know there’s never been a case where a sovereign legislature tried to make one of its own acts immutable. If such a case came up, it would presumably violate the principle that Parliament cannot bind its successors, and may therefore be unconstitutional.
I’m assuming that the courts would be fairly deferential, and unless the “manner and form” restriction were so strict as to place the legislation effectively beyond the reach of the Legislature, they’ll adopt a hands-off approach.
Don’t know if that contributes to your discussion or not??
I hate you, Gad. I’m going to have nightmares all night.
I have no wish to derail this thread. Since I’m never going to take a Con Law course I’m interested in y’all’s informed opinions. Besides, Izzy already made the point I would have raised ( I’ve been reading RICHARD Hofstadter ).
How about a cite?
Not that I doubt you, you understand, I just wanna be able to raise this point myself.
2sense, there was some discussion of the ratification process in this thread, which comes equipped with some case cites. Hope that covers it, since I don’t have time for a morning research project right now.
Just to give you folks labouring under a tired, largely inflexible Constitution a comparison, here’s the most recent example of how the Old World’s unwritten Con addresses the issue apropos a Bill of Rights and entrenched legislation:
Legislation which may be amended or repealed only after certain prescribed procedures have been observed, for example a special majority, or referendum.)
A brief comparison might be worth a couple of extra points for students
