I’m aware that the Supreme Court has the power to interpret the Constitution and its authority is therefore derived from the text of the Constitution. This is widely held to mean that the Supreme Court cannot declare any part of the Constitution itself to be unconstitutional.
So if a new amendment is enacted and ratified and becomes part of the Constitution, it has moved beyond Supreme Court jurisdiction.
But what about during the process? Suppose Congress enacts an amendment proposal and then sends it out to the states for ratification. At this point, it hasn’t become part of the Constitution yet. So it’s still just an act of Congress, which the Supreme Court has jurisdiction over.
Does that mean the Supreme Court could step in and declare an amendment proposal to be unconstitutional and order it to be withdrawn from the ratification process?
I don’t see why not, but it would probably take a proposal reducing a state’s representation in the Senate. There is a provision in Article V prohibiting such amendments without the affected state’s consent. In other scenarios, who would have standing to sue?
Maybe if Congress proposed an amendment and sent it to state conventions for ratification, with weird language regulating the conventions, that case could go to the Supreme Court.
Note that only one amendment has been ratified by state conventions, the 21st (repealing prohibition).
Speaking of prohibition, here’s a history lesson for you.
In 1930 a district court in New Jersey held that the 18th Amendment to the Constitution (prohibition) was unconstitutional. They were persuaded by defendant’s theory that the intent of Article V was for amendments affecting individual rights to be ratified by state conventions, and other amendments to be ratified by state legislatures. Because the 18th Amendment was passed by state legislatures, it was argued, that amendment was invalid.
The Supreme Court rejected the theory in 1931, holding that if Congress proposes the amendment, Congress has the power to choose the method by which it may be ratified. United States v. Sprague, 282 U.S. 716 (1931).
This is one of those “facts matter” scenarios. The Supreme Court certainly cannot of its own volition step in and declare an amendment unconstitutional – as @Max_S says, someone with standing would need to bring suit.
To my thinking, there are only two bases for the SC to declare an amendment unconstitutional – either the purpose of the amendment is unconstitutional, or the process has not followed constitutional requirements. In regard to the first, the only purpose of an amendment forbidden per the terms of the Constitution is to deprive a state of its equal representation in the Senate without its consent. (Well, also amendments prohibiting the slave trade or instituting a direct tax were prohibited prior to 1808.) Everything else is fair game.
Process objections would be more likely and could take many forms. For instance, the Article V provision allowing a convention for proposing amendments upon the request of 2/3 of states has never been utilized. There’s some question whether such a convention could be “bounded” by the requesting states to only address specific topics.
To avoid getting derailed into current politics, let’s go back over a hundred years.
In 1894, Congress enacted a law which put a tax on incomes. In 1895, the Supreme Court said this law was unconstitutional, citing Article 1, Section 8. The text is a little ambiguous but interpreting the text is the Supreme Court’s job.
Move forward to 1909. Congress enacted a proposed constitutional amendment on July 12, which explicitly said taxes on incomes were legal. This proposed amendment was sent to the states and received the necessary thirty-six ratification votes on February 3, 1913.
But suppose the justices had been more assertive in the period between 1909 and 1913. Assuming somebody had submitted a legal complaint, could they have taken up the case and then declared that the proposal Congress had enacted was in defiance of the decision the Court had made in 1895 and the proposal was therefore unconstitutional?
No. Congress and the states clearly have the authority to amend the Constitution to make something previously found unconstitutional constitutional. The Thirteenth and Fourteenth Amendments were passed in part to overturn the Court’s findings in Dred Scott.
Yes, once those proposed amendments were ratified, they were part of the Constitution and were beyond judicial review.
But a law is subject to judicial review. Suppose Congress had decided to enact a regular law in 1909, declaring income taxes were legal. I feel the Supreme Court would have been clearly within its authority to issue a new decision (Pollock II) saying that this new law was unconstitutional just like the 1894 law was.
And here’s the key question of this thread. In the time period between when Congress enacts a proposed amendment and the time when a necessary number of states ratifies that proposal, it is effectively just a law passed by Congress. It doesn’t have constitutional protection until it’s ratified.
This is how a law gets enacted under the Constitution:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.
This is how an amendment to the Constitution gets proposed:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…
Do you see how the two processes are distinct? In what circumstances do you imagine one process might be indistinguishable from the other?
As you noted the Thirteenth Amendment abolished slavery. It was proposed and ratified in 1865.
But the Thirteenth Amendment that was ratified was not the first thirteenth amendment to have been proposed. There had been a previous proposed amendment which protected slavery and said Congress could not prohibit it. This amendment had been proposed in 1861 in an attempt to convince southern states not to secede. It was enacted by Congress on March 4, 1861 and sent off to the states for ratification. But events had moved beyond it and it was not enacted (it only received ratification by five states).
Now move forward to 1963 (yes 1963 not 1863). Henry Stollenwerck, a member of the Texas state legislature, introduced a motion to ratify the proposed amendment. I don’t know what his intent was but the legislature did not vote to ratify. But this demonstrated that the proposed amendment was still out there and theoretically subject to being ratified. (And I’ll note that the 27th Amendment was enacted by Congress in 1789 but was not ratified by the necessary number of states until 1992.)
So could the Supreme Court step in and declare that the proposed amendment protecting slavery was now unconstitutional in view of the subsequent enacted amendment that prohibited slavery?
I recognize that the two processes are distinct. But has the Supreme Court ever officially declared that one process is protected from judicial review?
After all the Supreme Court has authority over a variety of acts. There’s Congress. There’s the fifty state legislatures. There’s executive orders by the President and other officials. The Supreme Court can declare acts originating from any of these sources to be unconstitutional.
There is nothing in the Constitution or judicial precedent to suggest that the Supreme Court can rule a proposed constitutional amendment unconstitutional on the basis that it conflicts with the current provisions of the Constitution (Senate representation aside). Doing so would be an absurdity – the point of an amendment is to amend the current provisions of the Constitution. In your 13th Amendment example, after adoption the Court would have decide how the provisions of the two amendments interact in the context of an actual case brought before the court.
I’m afraid that’s about as clear an answer as you’re going to get. I find there’s a lot of magical thinking around the Supreme Court, that they can just bang their gavels and effect any outcome they want. But taking such a ludicrous step as asserting the authority to prohibit a Constitutional amendment (which necessarily has the support of either 2/3 of Congress or 2/3 of states) would just leave the Justices shouting into the wind as their ruling is ignored.
Quite the opposite, I cited an instance where the Supreme Court reviewed the amendment process - specifically the act of Congress proposing what is now the 18th amendment - upthread. And it is well established that laws are subject to judicial review.
Just to clarify the difference (I believe) between what @Max_S and I are saying: it’s entirely within the Supreme Court’s authority to review the process by which an amendment was approved to ensure that it adhered to Constitutional requirements for adopting amendments. It would be something else entirely for the SC to say that the substance of a proposed amendment is off limits because it conflicts with existing Constitutional provisions.
Sorry, for the belated response but I was busy and it took me a couple days to read the Sprague decision, short as it was.
I tend to reach the opposite conclusion to what some others here do. I feel this would be a precedent for the Supreme Court to overturn an amendment proposal on substantive grounds.
I’m looking as much as what wasn’t said as what was. The first question appears to be whether an amendment proposal is beyond judicial review. The second question is whether judicial review, if allowed at all, is limited to only procedural issues and ruling on substantive issues are prohibited.
The Sprague decision seems to be a clear precedent answering the first question. It was not only ruling on a amendment proposal, it was doing so retroactively after the proposal had gone on to be ratified as an amendment. The New Jersey District Court had ruled the Amendment was incorrectly ratified and therefore was not in effect. The Supreme Court, in its decision to the appeal, overturned the District Court’s decision. But it did not state that the District Court had been wrong to issue a ruling. It was accepted that a court could validly rule on an amendment proposal.
The answer to the second question is admittedly more ambiguous. The question that was brought before the Court was clearly a procedural issue. The Court ruled on it, which established that the Court was claiming authority to rule on amendment proposals. And there was no mention of substantive issues.
To me, this seems like a precedent. If the Court felt that it only had the authority to rule on procedural issues, it would have said this in its decision. By issuing a ruling without placing any limits on itself as it did so, it was claiming the general power to issue rulings on amendment proposals.
IMO, this is a poor reading. The Court wasn’t asked to decide whether it had the authority to declare a properly-procedurally-proposed amendment unconstitutional. That the court didn’t rule on something they were never asked to decide establishes no precedent.
But this whole discussion has a “Could God make a rock so heavy even he couldn’t lift it?” air about it. A fun debate for late night Constitutional law study sessions with little relevance to how the courts actually operate.
In the Sprague decision, the Court issued a ruling on whether or not to overturn a constitutional amendment proposal. They decided not to. But the fact that they took up the question and gave an answer means they were saying they could issue rulings in this area.
Yes, they were saying that they could rule on the procedural issues. That says nothing at all about whether they can rule on the substantive issues. They didn’t say anything about that because they didn’t have to, because the answer is obvious.