Can the bill of rights be repealed?

Factual Questions
21

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.

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.

22

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?

23

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

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.

24

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)

25

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.

26

Should read prohibition on unequal protection of the laws.

27

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:

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.

28

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.

29

Nothing, really, but 2/3 of the states would also have to go along, and that could have sparked a Civil War.

30

So I looked at the “two senators” bit of Aticle V and it says

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.

31

A new state could be admitted (DC?) with the provision it have only one senator, or no senator, and that would be constitutional.

32

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

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:

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]

33

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

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:

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.

34

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. :slight_smile:

35

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.