Reading this article about the situation in Turkey, and the Unamendable aspects of certain parts of the constitution…
Got me thinking about the fully amendable nature of our constituition. Suppose eventually enough people got together to make a big change. Like strike all references to Freedom of speech from the thing. It passed all rules and became the Xth amendment.
Is there a defined process for dealing with the cascading aftermath? Would all supreme court decisions on a ‘freedom of religion’ basis be voided? Would any state laws struck down by FoS judgements pop back into place instantly? Or would they require a full review of all historic decisions related to it? I have to assume that there was some mess of effectsafter the 14th, but that is a little more focused it seems than freedom of speech, which spiders everywhere.
I have always heard that several states still have anti-Abortion statues that would pop back up if Roe.V.Wade were over turned, but that is a specific decision regarding a limited number of specific laws of states.
Is there a prepared contingency for an amendment to one of the fundamentals?
To rephrase that, I mean putting the 14th into practice seems a matter of looking for things that should be prevented by the new measure, as opposed to the Xth which would be finding everything that had been previously allowed by Fos, which seems a huge can of worms.
I don’t have an answer to your original query. I just wanted to point out that our constitution isn’t *fully * amendable. It can’t be amended in any way that would force a state to give up its full representation in the Senate.
Presumably the government could write an entirely new constitution and toss the old one. They tossed out the Articles of Confederation afterall which preceded the Constitution (which replaced it).
Many, maybe most states have a state bill of rights in the state constitiution which give the same or greater protections as the federal Bill of Rights. Texas’ freedom of speech section reads:
Most Texas decisions involving freedom of speech invoke both the federal and state constitutions, so those cases would still be valid under adequate and independent state grounds even if the the Freedom of Speech Clause in the U.S. Constitution were revoked by amendment. The only practical differences it would make would be (1) the Supreme Court of Texas would be the highest court you could appeal a freedom of speech case to, and (2) all 5th Circuit and U.S. Supreme Court cases would become persuasive authority instead of mandatory authority.
Perhaps the best broad-brush answer to the OP is that all laws are presumed constitutional until overturned by a court of competent jurisdiction. That is, the burden of proof that, e.g., Section 938 of the Patriot Act (if there is one; it’s a random example) violates the constitution is upon those claiming that it does, and it’s deemed to be constitutional until they prove to the satisfaction of the court that it’s unconstitutional.
So – no direct effect from the repeal of an amendment, or part of one, or some clause of the original Constitution for that matter. But any law passed or court decision rendered on the basis of the repealed item is subject to being overturned at the next challenge.
As noted by pravnik, a guarantee in the Federal Constitution may well be duplicated in state constitutions. This was brought up recently in GD with regard to the meaning of the Second Amendment; some states guarantee the right to own and bear arms without the militia clause and with added language that makes it clear it’s an individual right.
Also worth noting is that any state act. including the state constitution, must be in conformity with the Federal Constitution. Romer v Evans found Amendment II to the Colorado State Constitution to be unconstitutional because it violated the Equal Protection Clause of the Federal Constitution’s 14th Amendment.
I would respectfully disagree with this comment. The provision about state representation in the Senate can be amended - provided each state agrees with the change in their representation. It’s a very specific, very rigid amending formula, but it does allow for changes to the Senate contingents.
That’s different from the Turkish provision cited in the article. According to that article, there is no way to amend s. 2 of the Turkish Constitution.