In regards to the question of the constitutionaliy of the 22nd Amendment, it is of course clear that any subsequent amendment to the constitution takes precedence over an older section of the text. The Supreme Court is bound to follow the Constitution, treaties, and laws of the United States. Congress is always free to amend the Constitution in accordance with the provisions of Article V, which demands that the proposed amendment be agreed to by 3/4 of all the State legislatures. The President plays absolutely no role in the amendment process. He does not get a vote nor does he have any veto power over the amendment.
To add to TortFezr’s reply, an amendment must receive a 2/3 majority in both houses of Congress before it can be sent to the states for ratification.
I don’t see any way the 22nd amendment will be repealed in the near future, especially since term limits are a fairly popular political idea now (although embraced rather too stridently by some for reasons I can’t understand.)
The only parts of the Constitution that CANNOT be amended are the parts regarding a state’s size (you can’t carve one up against its will and, yes, Congress felt that West Virginia was exercising the will of the people it chose to listen to) and you cannot deprive a state of two seats in the Senate.
So, just get used to the idea that there are two Senators from Wyoming and Vermont.
Actually, Bob, I see no reason why those things could not be amended just like any other part of the Constitution. Do I think it’s likely? No. But there is no way to prohibit it.
CKDEXTHAVN:
My apologies for the tangent. I misunderstood. With the topic being CLINTON’S third term, I felt he was as much the topic as the constitution, nez pas? No, I wouldn’t want Reagan for a third term either, despite my positive opinions of his administration.
Er . . . what planet are you on? He may have received less than 50% of the popular vote, but he received a plurality of the vote among all candidates running. You do understand that’s how it works, right? He received 43%; the other candidates received less than 43% each, and didn’t win the states with the most electoral votes.
I’m not sure about the state-carving-up part, but cutting a State (but not all States) out of a Senator would seem to be proscribed.
Article V., in relevant part:
An interesting Constitutional question, of course. Could an Amendment repeal a proscription on a certain kind of Amendment?
Livin’ on Tums, Vitamin E and Rogaine
I think an Amendment can pretty much do anything. That’s the point. I mean, we added a requirement to being president (the subject of this discussion). There is nothing that would stop us from writing an Amendment that guts the Constitution entirely. Nothing except for, well, We The People.
I’ll check with my brother-in-law the law professor, but common sense says that the whole point of an AMENDMENT is to amend what was previously the law. Thus, any parts of the Constitution not in line with an amendment would be assumed to have automatically come in line (been amended) by the amendment itself, ipso facto and obiter dictum.
I think changing the representation in the Senate would require a whole new Constitution instead of some amendments.
But I’m just an amateur constitutional fan.
Why would it require a whole new Constitution? I mean, that is the point of Amendments. There is no part of the Constitution that is immune to them.
And, yes, Dex, the later amendment takes precedence except in extreme and foggy circumstances (such as when the amendment did not make clear whether it was overriding something else). I’ve had to deal with this at work, where we deal with laws and regulations.
I’m not disagreeing, but unless it requires scrapping the whole Constitution to, say, reduce a State’s Senate representation, then what was the point of placing a list of “Amendments that may not be made” in Article 5? It seems to me that at least one interpretation SCOTUS could make is, “No, you may not Amend the Constitution to deprive North Carolina of its senior Senator without voiding the entire Constitution, or at least giving NC a chance to opt out of the document.”
Livin’ on Tums, Vitamin E and Rogaine
The simple reason that the Constitution could not be amended to deprive a State of its equal representationin the Senate is because the Constitution says so. And mopre importantly it is WHERE in the Constitution that it says so. The provision preventing future amendments from doing this appears in the Article that provides for the making of Amendments to the Constitution. In order to make any changes to the Constitution, and for those changes to indeed BE constitutional, the amendment must, in its adoption, follow the procedures set out in the Constitution. The Constitution states that in order to amend, the voting procedures discussed above must be followed and it states very clearly that changes may be made “[p]rovided that” no amendment be made that deprives a state from equal sufferage in the Senate. It seems to me that were the SCOTUS to review an amendment that purported to change that provision in light of the procedures necessary to make an amendment to the Constitution and find that the amendment did not satisfy the requirements necessary of an amendment to the Constitution, just the same way as if the amendment had only been approved by a simple majority of the Congress or my 2/3 of the State Legislatures. That is my simple explanation. Sheesh, i’s hate to see the long winded one.
I wonder what it would take to abolish the constitution and/or adopt a new one? If I get you guys correctly, the constitution also says (or at least implies) that it cannot be thrown out entirely. Thus, even if every single citizen would agree on a new one, the current constitution would not allow it because it is set in stone to last forever? This seems like a paradox; there has to be a way around it.
Holq:
I think if 38 states call for a “Constitutional Convention,” then there can be one.
If fact, I think that there was a proposed amendment some years ago that would have done this, but it apparently never happened.
I agree with the previous post. If 38 legislatures called for a constitutional convention with the express of writing a new one, then I think it would be accepted.
That’s similar to the way we got our present one. Once all the Powers That Be accept the new document, that’s it. As SCOTUS would say, “It’s a political question, not a legal one.”
The Consitutional Convention is not provided in the Constitution itself, is it? (Sorry, I’m not American myself.) So that still means that abolishing the Constitution means violating the Constitution, right?
Of course, the practical approach that BobT mentions is always available; once you really agree on something politically, there is no unsurmountable legal obstacle.
The reason I brought this up is that is was mentioned that several possible types of amendments were forbidden by the Constitution itself. Well, if people really, really wanted to, that would not be a problem because of the above.
On overturning the present Constitution and getting a new one: If the military decided to take over the country, for instance, and toss out the Constitution… well, it’s happened elsewhere.
The system works because we the people (including the military, the politicians, and all) want it to work. The system is cherished but should not be taken for granted.
Well Article V provides for a Constitutional Convention if 2/3 (not 3/4)of the states and 2/3 of each House of Congress calls for one, but it only mentions the Convention having the right to amend the Constitution, not abolish it. Then, any amendments proposed by the Convention must be ratified by 3/4 of the States (currently requires 38).
However, I see no reason why Article V could not itself be amended to provide a mechanism under which the Constitution could be abolished. (Note- I’m talking about could be, I definitely am not suggesting should be.)
This raises an interesting question: since Article V does not include itself on the list of items which are forbidden to be amended, could an amendment to Article V remove all the exclusions and, for example, permit the reduction of a State’s territory without its consent?
No, under the ancient legal doctrine known as gettus realus.
On the other hand, a Constitutional Convention probably could jettison the whole thing and write a new one. That’s essentially what happened in 1787, after all.
John W. Kennedy
“Compact is becoming contract; man only earns and pays.”
– Charles Williams