I recently heard or read some place (I forget exactly where, so I don’t have a cite), that during the days just before the US Civil War, some politicians had what today some might call an ironic idea. Amend the US Constitution so that slavery can “never” be outlawed (to appease slavery states, of course). Or in other words, enact an amendment that precludes other amendments.
This got me thinking. Besides being truly frightening, is this possible? Can one amendment literally stop you from overturning itself in the future? Think about it. The power to propose amendments comes from the main body of the constitution, not the amendments themselves (see here, then scroll down to Article V).
And how would the US Supreme Court handle a case like this? Would liberal and conservative justices concur? Would they literally overturn a whole amendment as “unconstitutional”, for the reasons I just gave?
I seem to remember that the Italian Constitution has a clause that prohibits any constitutional amendments restoring the monarchy, and states that this clause is not amendable or repealable.
However I can’t see how it would work. The people cannot be bound by their forefathers - they would simply have to declare the constitution void or rewrite the clause, IMO. I don’t see how a court could uphold the Constitution written in the name of the people when it’s the people themselves calling for it to be rewritten.
Laws have no teeth without enforcement. If future generations don’t want to abide by a law, they’ll repeal or simply ignore it no matter what the law originally said. Even the Constitution is just words on paper, ignored at will by any sizable majority of representatives – and by extension, the populace.
Your question is essentially “Can a legal framework protect itself against future change?” and the answer is yes, but in so doing will soon render itself irrelevant and people will just move to another framework no matter how “supreme” the original law was unless that supremacy was protected (and successfully defended) by threat of violence.
That’s how we got a non-royal government to begin with.
FWIW, this is the Corwin Amendment and could still theoretically pass. My question would be that if it were proposed before but passed after the 13th Amendment, would it supercede that amendment?
That is not an example of what Jim B. is looking for. Nothing in the language of the 18th Amendment even attempts to prohibit further Constitutional modification.
Which proves that the 18th amendment didn’t successfully preclude anything.
Basically, people can whine long and hard about whether a given law is constitutional or not, but amendments are constitutional by definition (so you just have to argue about whether or not they’re good ideas).
An amendment could change the process by which future amendments are made, though, which could make it more difficult to change. I suppose an amendment could preclude all future amendments, meaning that the only way to change anything in the future would be Constitutional Convention or armed uprising.
In 1982, the philosopher (I think he might also have been a political scientist) Peter Suber proposed a game called Nomic that might, in some sense, contain lessons about how a constitutional government works.
The game comes with an initial set of rules, which includes rules about how to change the rules. A major part of the strategy of the game entails players changing the rules during the game. This requires the players to vote, so players must make deals with one another to build coalitions. Of course, even the rules on how to change the rules can be change.
ETA: Upon examining that link to the book cited in the quote: It appears that the entire book is there on-line, including the cited Appendix.
What if we were to pass an amendment that “repealed” or “nullified” the section of the constitution that said that no amendments could be made with regards to denying equal suffrage of the states in the Senate, and then in the next amendment (or even the 2nd section of the same amendment) take away a given state’s senators?
Would that be constitutional? Seems to me it would be, since there was no protection against repealing that original section of the constitution.
But suppose it had said that this language shall never be repealed. Under your theory, you could repeal the “no repeal” language, repeal the prohibition on amendments against equal suffrage, and then repeal equal suffrage.
So we get serious and say that NOTHING in Article V can be repealed! Ever! So we repeal that clause, repeal the “no repeal” language, repeal the prohibition on amendments against …
If the intent of the founders was an entrenched clause, then this method of nested repeals would violate the spirit of that intent and be void…
Along those lines, isn’t it a pretty well-settled principle of UK constitutional law that no Parliament can bind a future Parliament? I.e., it’s entrenched that there can be no entrenched clauses.
The amendment clause itself is not unamendable. If it had been, then presumably it could not be changed. So you could amend it first and then take away equal representation in the senate. But you could in practice never get the states to agree to that.
I was once in an organization so silly that I won’t mention its purpose. There were precisely three members and we had bylaws that needed two votes to change. Then the other two proposed to add a bylaw that all changes required unanimous votes. I was against it and finally proposed to change the proposed bylaw so that repealing it required only two votes. No, the other two were adamant. So it passed by 2-1. After that I routinely vetoed every proposed new bylaw until one of the other two wanted to repeal that bylaw, but was prevented from doing so by the third member. Well, we soon all graduated from HS and went our ways, but it destroyed out organization.
Pretty much, yes. The summary of our constitution is ‘whatever the Queen-in-Parliament decides is law’, and it’s impossible under this situation for any Parliament to be bound by a former.
Our uncodified constitution changes slowly and cautiously because of the weight of history and the codependency of the various institutions within it, rather than because of a high bar on constitutional amendments.