Constitution Question

Can a constitutional amendment be deemed unconstitutional? Yes, I know this seems oxymoronic and self-defining.

What I mean is, can two constitutional amendments be found to contradict each other?

The example I’m picturing is an amendment outlawing flag burning. IIRC, this issue gets closer and closer each year. Currently, flag desecration falls under the first amendment rights of free speech. Could an amendment be passed to contradict another amendment?

Well, there’s the 18th Amendment, which was repealed by the 21st.

The 17th Amendment (popular election of senators) contradicts Article I, Section 3, Clause 1 of the Constitution, which has senators appointed by the state legislatures. The simple answer is that amendments amend (change) the Constitution. In your example, an amendment to outlaw flag burning could be constitutional.

The 12th Amendment supersedes Article II Section I - and unlike in the case of the 21st and 18th, it doesn’t specifically repeal its predecessor. However, since that was the obvious intent, the 12th is controlling. Same thing will happen if (God forbid) the flag burning amendment is ever passed: it’ll be a legal exception to the speech clause.

Thanks for the replies…

Maybe I should rephrase, or maybe I’m just looking too hard for a “doomsday scenario”…

Leaving repeals and adjustments to previous amendments out, I’m trying to picture a scenario where something is found to be protected under one ammendment and forbidden by another. I’m assuming the courts would have the responsibility of interpreting the constitution, but what if they found the amendments to be at odds with each other, with no simple solution found? This happens all of the lime with legislation, either with each other or with the constitution. I’m just trying to figure out if it could happen with two amendments, and who’d have jurisdiction to fix it.

Fortunately, it’s REALLY hard to amend the Constitution and that the Congress and 38 State legislatures would be wise to any problem that would occur.

If not, I suppose the Supreme Court gets to sort out the mess.

I think a good summary of the previous answers is that the most recent amendment is considered to be the controlling one. So, if it conflicts with some earlier part of the Constitution, that earlier part is considered to have no force.

That pretty much makes conflicts within the Constitution impossible by definition. Of course, the courts are always empowered to interpret any apparent conflicts, but they do not have the power to remove an amendment (if that’s what you’re asking).

There are exactly two possible amendments which would be unconstitutional: one which deprives states of equal representation in the Senate, unless it were ratified by all 50 state legislatures, and one which would be pointless but which could not be constitutionally enacted without first enacting an amendment to repeal a portion of the original constitution. This second pointless amendment would retroactively ban the slave trade as from a date prior to 1809. Those are the two categories which the constitution specifically prohibits amendments from changing. Obviously, an amendment removing that prohibition would be possible, followed by an amendment changing one or the other of them. But as matters stand now, they cannot be changed except as specified.

Other than that, any portion of the original constitution and any amendment or portion thereof could be changed by a new amendment, which would supersede the old one.

The Supreme Court would sort it out using the same rules of construction that are used to sort out conflicting legislation.

First, they would try to find a way to read the two provisions in harmony, giving effect to both.

If that were truly not possible, then the more recent provision would control.

What if there was an amendment that said “No further amendment may be made to the constitution.”; and then later people changed their minds and said “Yes, we do want to be able to add amendments”? Could a new amendment restoring the addition of amendments be made, even though any further amendments were forbidden?

Isn’t this much of what constitutional disputes are about–which constitutional right predominates over another when they are in conflict? Say, school prayer (freedom of speech and religion vs. others’ freedom of religion)? It’s late and I can’t think of other/better examples, but this comes up all the time under the Constitution as it stands.

I guess we’d be stuck calling a constitutional convention and starting over from scratch. We could then copy verbatim the entire existing Constitution (except the amendments would now become articles in their own right) except for the silly amendment.

It’s worth pointing out that the current interpretation of the First Amendment protects the practice of burning flags; nowhere is this practice specifically permitted. So even without considering which was the later amendment, if another portion of the Constitution specifically gave Congress the power to forbid flag burning, then the First Amendment would not have been so interpreted.

When analyzing laws that may contradict each other, courts must read the laws in pari materia (in a like matter) – that is, they must be read together, in harmony with each other, giving (if possible) full effect to each.

Legislators are presumed to know the law, and states presumed to know the Constitution, when they pass a new law or a new amendment. If there seems to be a conflict, the more specific is favored over the more general.

For example, if a law mandates a two-year sentence for selling alcohol to a minor, and another law a five-year penalty for selling 191-proof grain alcohol to a minor… a person cannot claim that the two laws contradict each other.

  • Rick