So it’s 2123 and Americans are finding it more and more difficult to reconcile the principles of the US Constitution with the bare realities of life when the zombie apocalypse is happening around them.
At least in theory, could the US Constitution, in its entirety, be abolished peacefully through internal political processes? Specifically, no violent overthrow of the government is permitted, and the country may not be conquered by a foreign power. The change must be effected using the law, not against it. For example, could a new Constitutional Amendment be passed that states, “From the effective date of this amendment, all sections of the Constitution other than this one are hereby repealed.”, followed by an Amendment or statute setting up a royal dynasty, completely banning civilian ownership of guns, permitting bills of attainder and ex post facto laws, disbanding the Supreme Court, reinstituting slavery, or denying people due process of law in criminal cases?
We are assuming that enough people are behind this to make any vote turn out in favor of scrapping the Constitution. I am well aware that such a even is highly unlikely in real life. I’m interested in whether or not it would be possible from a legal perspective.
According to Article V of the Constitutions, the states can call a constitutional convention, which can amend the Constitution as a whole as it sees fit.
So all it takes is 2/3s of the State Legislatures to call a convention, if the subsequent document is ratified by 3/4ths of the states, the new constitution becomes law according to the old constitution, and the old constitution is effectively abolished.
The United States Constitution does contain a provision that could, perhaps, be used for “starting over” – It’s the provision for a Constitutional Convention for amending the Constitution. That, in fact, is how we got from our first “constitution” (the Articles of Confederation) to the one we have now. When that convention was convened in 1787, the advertised intention was simply to amend the Articles. What they did instead was amend it beyond recognition, starting over from scratch. We have never had another Constitutional Convention since, and if we ever do, there may be nothing to prevent a repeat of that scenario.
As for R_C’s suggestion of an amendment annulling the entire Constitution heretofore, followed by more amendments creating new heretofore unthinkable rules, an obvious paradox arises: By first creating an amendment voiding the entire Constitution heretofore, you’ve eliminated (among all else) the very rules by which any further amendments could be created! Why bother? You could just as well (in fact, better) create all those additional amendments that R_C suggests (e.g.) without first annulling everything else first.
(ETA: Ninjaed, at least in part, by several recent posts immediately above.)
Maybe depends on if the zombies are in the majority? If so, the rest of us might not want to risk what might happen if we go changing the Constitution then.
Remember, by the way, that a fundamental principle of our governance rests on “consent of the governed” (well, in theory). Does our current Constitution grant any rights to zombies in the first place? If not, we might want to keep it that way. What would zombies consent to anyway? Are they even capable of consent?
Well, the problem is that it’s impossible to determine if someone is a zombie without searching them, and police are having a lot of difficulty with keeping the zombies at bay because you can’t search someone without a warrant upon showing of probable cause, and zombies don’t leave probable cause, so we want to make it so that arbitrary searches and seizures are legal. We also need to disband the Supreme Court because all of the Justices are now zombies. Also, due to budget cuts, we have nowhere to house our troops and so we want to quarter them in peoples homes. We also have a lot of people who opposed the anti-zombie movement that we consider to be societal rejects and we want to enslave them along with their zombie overlords.
It would be very difficult- not absolutely impossible but very difficult- to legally abolish the states, since by either process of amending the Constitution the states would have to agree to their own dissolution.
And I for one welcome our new zombie overlords. I’d like to remind them that as a trusted TV personality, I can be helpful in rounding up others to toil in their underground sugar caves.
There is one further problem with using the amending clause to start over. Unless a new constitution provided for a senate with equal representation for each state (one of the worst flaws in the current constitution, IMHO) any new constitution would conflict with the amending clause. So you might have to start by amending the amending clause to allow a whole new constitution that didn’t have such a provision and then go the route of a constitutional convention.
How so? The amendment or new constitution would not be effective until after all the criteria for ratification were met. So the senate would continue to exist until that happened.
I look forward to all the confusion that results a couple of years from now when this thread gets resurrected as a zombie thread, and people start making sly zombie comments which are indistinguishable from the heretofore straightforward zombie comments.
