That question wasn’t before the court.
I just . . . don’t know how to respond to this. They did not say, “we can rule on amendment proposals.” They issued a ruling specific to the specific question that was brought before them. Why not just say that because they have ruled on “stuff,” that means they can rule on any other “stuff”?
The Supreme Court issued a ruling on a constitutional amendment proposal. I don’t see how you can say that’s anything other than the Supreme Court declaring it has the power to issue rulings on constitutional amendment proposal.
It’s an issue of what principle was established.
Look at the Marbury decision. The Court established the principle of judicial review existed by declaring that the Judiciary Act of 1789 was invalid.
They weren’t saying that Court only had the power to declare that one specific law invalid. That just happened to be the one that was involved in that particular case. But once they established they could overturn a law, then they were also saying they could overturn other laws.
The question before them, and one within their authority, was if the process the amendment flowed through ran afoul of the Constitution. That’s legit SCOTUS territory. You may not ignore constitutional requirements.
If the president negotiated a treaty without 2/3 approval of the Senate, SCOTUS could put the brakes on it because it’s violative of the Constitution. That does not lead to the conclusion that they have the authority to pre-approve the substance of any and all treaties.
The court didn’t explicitly claim or deny its authority to review substantive issues with amendment proposals because neither of the two Constitutional provisions related to the substance of an amendment were relevant. I would like to reiterate that there are two and only two restrictions on the substance of an amendment to the Constitution, of which the first is now obsolete.
- “Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article […]”
- “Provided […] that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Any other proposed amendment is fair game regardless of substance. For example, the 13th Amendment prohibits slavery in the United States. This does not prohibit an amendment to the Constitution repealing the 13th Amendment. I’m not sure what your hang-up is about that. The 21st Amendment set a clear precedent that new amendments can undo an existing constitutional prohibition. To wit, the 18th amendment prohibited manufacture/sale/transportation of intoxicating liquors, and the 21st amendment repealed that prohibition.
Sprague does not establish precedent on the specific question (does the Supreme Court have authority to review an amendment proposal’s substance) since as you note the question was neither ruled on by the court nor even noted in the dicta. If the court had ruled on that specific question, you would have binding precedent / mandatory authority. If the court answered the question off-hand, you would have non-binding precedent / persuasive authority. Here we have neither, however, there are plenty of persuasive authorities out there to support an argument that the courts can strike down an amendment denying a state equal suffrage in the Senate.
~Max
I’ve done a little more reading. I found that Sprague was not the first time the Supreme Court ruled on procedural questions related to an amendment proposal. That appears to have been Hawke v Smith in 1920. There was also Dillon v Gloss in 1921, Sprague in 1931, and Coleman v. Miller in 1939.
All of these decisions were addressing procedural issues in amendment proposals. So you may be thinking what’s my point?
Suppose the SDMB had existed back in 1914. And I had posted a question asking if the Supreme Court had the authority to rule on procedural issues related to an amendment proposal. People might have responded quite factually that the Supreme Court had never issued such a decision. And they might have concluded from that, that the Supreme Court never would rule on a procedural issue related to an amendment proposal.
But the Supreme Court has now done this at least four time since 1914.
It’s now 2024. I’m asking asking if the Supreme Court had the authority to rule on substantive issues related to an amendment proposal. People are responding factually that the Supreme Court had never issued such a decision. And they appear to be concluding from that, that the Supreme Court never will rule on a substantive issue related to an amendment proposal.
Okay, now can somebody explain to me what factors exist in 2024 that justify making this prediction of what the Supreme Court might do in the future that were not factors in 1914?
The Supreme Court seated majority can torture logic as much as it wants to, up to the point where the Senate removes or adds judges that disregard or revere the constitution respectively. Or who are or are not on the take.
Related question: are some amendments unconstitutional? Is there a limit to which the constitution can be amended? A: it depends who is doing the amending. If a Democratic Congress offered an amendment to substantially alter the selection of the Senate membership, that would be impermissible because it conflicts with Section 3 of the constitution. That’s not something that can be amended, just as the clear language of the 14 amendment does not apply to Republican Presidential candidates, while nothing-in-the-constitution-SCOTUS-just-makes-things-up mandates presumed immunity for official acts by Republican Presidents.
The Republican Supreme court majority does have limited power (see 1st paragraph), except insofar as settled law and precedent is concerned: the latter poses no constraints. Kevin Drum provides examples:
A former poster here drew a distinction between what is constitutional according to past SCOTUS decisions and people’s opinions of what is constitutional. Based on the cases, outlined above, I’ve provided a guide to what is or what is not constitutional. Others can state their opinion: I’m just calling balls and strikes. You’re welcome.
I don’t want this to be a partisan “Republicans are evil” thread.
What I’m wondering is whether there is anything which says the Supreme Court has to take a hands off policy to the substance of an amendment proposal? Or is it just something the Supreme Court hasn’t done in the past?
It can even be a statement by a Supreme Court Justice saying that the Court shouldn’t issue rulings in this area. Or a lower court ruling saying this which the Supreme Court has never stated it disagrees with.
In addition to Sprague, the Supreme Court upheld additional requirements to the constitutional amendment process as decided by Congress. The Supremes inserted themselves into the process and decided to apply judicial restraint. Cite in footnote 4:
The Constitution requires only that amendments be proposed by the vote of “two thirds of both Houses…”, but Congress expanded this requirement by internal rulemaking, so that a congressional vote to propose an amendment must be approved by two-thirds of the Members present and voting, a quorum being present, in both chambers. Although it was established by internal action, this requirement was ruled to be constitutional by the Supreme Court in its 1920 decision in National Prohibition Cases, 253 U.S. 350, 386 (1920).
That sounds like a procedural decision, not an edit of a propose constitutional amendment, but I thought it deserved mention.
I’ll note that almost all of these cases involve procedural arguments that were made against the legality of the 18th Amendment. That amendment seems to have provoked a lot of legal resistance.
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Any Supreme Court justice or Federalist society pundit contemplating the OP will ask themselves, “Is it necessary to intervene at this point? Can’t we just interpret the language into oblivion?” Sometimes the answer will be yes, sometimes no. I would speculate that major aspects of the prohibition amendment contained little ambiguity.
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Whoa: this is a thing:
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Is that a valid concept? Debatable. Say it is. Can the Supremes preemptively block an unconstitutional constitutional amendment from going to the states? “Historically, the United States Supreme Court has only passed judgment on state constitutions, never the federal Constitution.” Cite (where the author argues against time limits for SC judges, an amendment he argues would be unconstitutional. I’m not convinced either.).
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Any Supreme Court justice of Federalist Society pundit contemplating the OP might balk at toppling 2 big precedents at a time. Better to jigger the American democratic experiment in steps.
One question still arises. Suppose an amendment was proposed to amend the amendment clause itself to remover the restriction on changing the equal representation clause. There is nothing in the amendment clause that prohibits amending it. Could SCOTUS declare that out of order?
Could you point out the specific member who you think made this argument?
For my part, 1914 or 2024, I think the court does have the authority to invalidate an unconstitutional amendment. I don’t understand why you are putting so much emphasis on substance versus procedure. The amendment process is only valid if substantive requirements are met, per the text of Art. V. In other words the amendment process includes the substantive requirements.
Perhaps what you are missing is the valid inference that because two substantive requirements are given explicitly, they are the only two substantive requirements for amendments (expressio unius est exclusio alterius).
~Max
I do have some sympathy to the position that a potential amendment to the Constitution could be so grossly out of line with basic Constitutional principles – such as eliminating elected offices and establishing a dictatorship – that it would be unconstitutional. But if we ever get to that point then the quaint formalisms of whether and how the issue could be adjudicated by the judiciary will be irrelevant. If 2/3 of Congress and 3/4 of states are ready to go down that road, then 9 justices aren’t going to stop it.
That’s going to be up to them. I can see arguments for both sides.
If it were up to me, I would uphold such an amendment on a textual basis and using the 17th Amendment as precedent. There is a strong original-intent argument to make that such an amendment violates the spirit of Article V, but where do you draw the line? Consider an amendment stripping the Senate of all its powers but leaving each state with equal suffrage in the impotent body. Meanwhile a neo-Senate is created in its place and states are given unequal representation in the new body. Is such an amendment unconstitutional? Perhaps there is no neo-Senate and all the Senate’s former powers are bestowed on the House. Is such an amendment unconstitutional? Where do you draw the line - presumably, the 17th Amendment is constitutional though it changed the nature of the Senate. And the Supreme Court has upheld the right of the Senate itself to refuse to seat Senators, thus in effect denying a state equal suffrage, despite Art. V. I figure it’s easier to assume if there’s political will for two constitutional amendments to bypass the entrenchment clause, the courts really shouldn’t stand in the way, as a practical matter. They should make sure the 'i’s are dotted and 't’s crossed, and that’s it.
~Max
I think that the notion of an “unconstitutional amendment” is more relevant for nations without an official, specific constitution. For instance, in Israel recently, Netanyahu passed (or attempted to pass: I can’t recall if he pulled it off) bills that hamstrung the power of the judiciary. Opponents said that his bills violated fundamental principles of the nation, but those fundamental principles aren’t actually written down anywhere.
That’s an interesting thought. Canada has a senate which once upon a time had real power. But now it can delay but not stop an act of Parliament. I imagine an amendment could be passed that similarly neutered the senate. Of course, it would never get through the senate, but is theoretically possible. Also it could reduce the number of EVs to the number of house members (or even institute direct election of president). I remember explaining the electoral college to my kids (who grew up in Canada) and they couldn’t believe that anyone had dreamed up such a system.
You, for one.
Did I greatly misread what you’re saying here? Because I read this as you saying the Supreme Court cannot rule on a substantive issue related to an amendment proposal, with the single exception you mentioned.
My question remains; Is that actual case law? Can you cite a specific case where the Supreme Court stated it does not have the authority to issues rulings on the substance of an amendment proposal?
Actually I believe the first instance was for the 11th Amendment. I recall someone complained that the proposal was never sent to the President for veto, and the Court ruled the President was not part of the amendment process.
~Max