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?
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remember Government class correctly, an amendment has to be either be declared unconstitutional by the Supreme Court or repealed as a provision in a later amendment.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
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.
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.
D’oh.
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.
Sure it can. Every time someone doesn’t vote, it gets closer to being repealed.
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:
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
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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.
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.
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.
…
“There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” - James Madison
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 :D).
And Freedom always requires the vigilant citizen to be her defender.
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.
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.
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.
Oh, yes, in regards to the OP:
Over my dead body!
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?
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.
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
But darn it, there are too many Dakotas!! 