# Does the US Supreme Court have the power to overturn a Constitutional Amendment? **URL:** \ **Category:** Factual Questions\ **Created:** [May 27, 2009, 6:09pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819 "2009-05-27T18:09:05Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [May 28, 2009, 2:29pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/21 "2009-05-28T14:29:43Z")
I thought the OP was asking if the U.S. Supreme Court could overturn an amendment to a State (California, in this case) Constitution, based on violation of their interpretation of the U.S. Constitution, not whether the SCotUS can overturn a Federal level amendment. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 28, 2009, 2:43pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/22 "2009-05-28T14:43:35Z")
> [@aldiboronti](#): > > I was wondering about this when the California Supreme Court gave its decision on gay marriage. It seems clear that they had the power to overturn the amendment to the California constitution, presumably on the grounds that it was unconstitutional, ie against their interpretation of the US Constitution. > > Does SCOTUS have that same power to reject Amendments to the Constitution passed by the requisite majority of states? Has it ever done so? I’m trying to assess just how powerful the Supreme Court is and if its decisions could be maintained against the will of the majority and if they ever had been. > [@mlees](#): > > I thought the OP was asking if the U.S. Supreme Court could overturn an amendment to a State (California, in this case) Constitution, based on violation of their interpretation of the U.S. Constitution, not whether the SCotUS can overturn a Federal level amendment. The underlined portion of the OP makes clear he’s talking about amendments to the United States Constitution. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [May 28, 2009, 3:32pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/23 "2009-05-28T15:32:04Z")
> [@The\_Second\_Stone](#): > > There is another category where the USSC could legitimately overturn a normally passed constitutional amendment: if the states tried to apportion the power in the US Senate in any way other than two Senators from each state, each with a full vote, then it would violate the US Constitution, because the normal procedure to pass constitutional amendments is specifically prohibited by the US Constitution when screwing with the power of a State in the Senate. The prohibition is against equal representation in the Senate. We could change it to one or three Senators per state, for example. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [May 28, 2009, 3:50pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/24 "2009-05-28T15:50:03Z")
The Supreme Court can’t overturn it, but they can interpret the amendment or the constitution in such a way that the part they don’t like isn’t functional. The Dredd Scott decision was sort of an example of this. The ruling took away citizenship from blacks, free and slaves. The 14th Amendment was passed to overturn this ruling. Then the court applied it to other areas. The 13th Amendment prohibits involuntary servitude. Now the draft is clearly involuntary servitude. But the court says “that’s not what the amendment is about.” So they allow the draft. The 14th Amendment currently allows anyone born on US soil and subject to it’s jurisdiction to be a citizen. This means if you’re an illegal alien and give birth on American soil, your child is a citizen. Now the court has never specifically ruled on this, but so far, this is a fact. The court could simply say “No, that the 14th Amendment applied to slaves, not immigrants.” And then they could stop that practice. At one time the practice of child labour was such that to regulate it the Supreme Court said you’d need an amendment to the constitution. Now we freely regulate child labour without an amendment, 'cause later courts just changed their interpretation. So the answer is “No,” the SCOTUS can’t say an amendment is unconstitutional, but they can interpret the constitution in such a way that it renders the part of the constitution as ineffective. So in reality, yes they can do this. For interesting reading read about the Dredd Scott case, probably the most illogical and controversal decision by the Supreme Court and you’ll see how it might be done. I’m not saying Dred Scott declared part of the constitution as unconstitutinal, but it gives a good insight on how it could be done. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 28, 2009, 3:59pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/25 "2009-05-28T15:59:47Z")
> [@Rumor\_Watkins](#): > > at some point, the unconstitutional statute was law. In practice, sure. But theoretically, no. –Cliffy ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 28, 2009, 4:06pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/26 "2009-05-28T16:06:40Z")
> [@The\_Second\_Stone](#): > > There is another category where the USSC could legitimately overturn a normally passed constitutional amendment: if the states tried to apportion the power in the US Senate… Yeah, this is the interesting case (also there’s the clause saying the federal government couldn’t prohibit importation of slaves until 1808, but it didn’t turn out to be an issue). I for one don’t think these limitations are enforceable, but so far it hasn’t been tested. –Cliffy ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [May 28, 2009, 4:13pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/27 "2009-05-28T16:13:25Z")
> [@Captain\_Carrot](#): > > Huh. My understanding is that the 18th amendment is still part of the Constitution, but no longer has any legal meaning. Maybe yes, maybe no. > [@](#): > > AMENDMENT XXI > Passed by Congress February 20, 1933. Ratified December 5, 1933. > > Section 1. > The eighteenth article of amendment to the Constitution of the United States is hereby repealed. How do you define “repealed”? ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 11:10pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/28 "2009-05-28T23:10:18Z")
> [@Exapno\_Mapcase](#): > > The U.S. Supreme Court has no such power. > > The California Court has no such power either. However, that wasn’t exactly the issue. The issue was the legal status of the proposition. > > [New York Times](http://www.nytimes.com/2009/05/27/us/27marriage.html?_r=1&scp=1&sq=prop%208&st=cse) Nitpick. That was certainly one argument advanced. However, opponents of Prop 8 also claimed that it violated separation of powers, and the Attorney General’s argument was that Prop 8 attempted to abrogate fundamental and inalienable rights. The CA Supreme Court rejected these arguments. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [May 29, 2009, 7:25pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/29 "2009-05-29T19:25:41Z")
> [@DSYoungEsq](#): > > The underlined portion of the OP makes clear he’s talking about amendments to the United States Constitution. Sorry. I thought what the OP appeared to be asking (as far as I could tell) is whether the US Supreme Court can overturn a California State Constitutional Amendment (Prop 8) based on a amendment in the U.S. Federal Contitution. (Full Faith and Credit comes to mind, even though FF&C is not a seperate Amendment.) ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 29, 2009, 9:13pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/30 "2009-05-29T21:13:15Z")
Let me ask a specific question: Article V of the Constitution prohibits any state from being deprived of equal representation in the Senate without the consent of that state. Now, let’s say everyone gangs up on Texas and says they aren’t worth having two senators. Everyone votes for a constitutional amendment that limits Texas to 1 senator, except it is opposed by the sitting senators from Texas and the ratification of the amendment is opposed by the Lone Star State. Would the Supreme Court have a role in determining whether that amendment was constitutional? ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [May 29, 2009, 11:28pm UTC](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819/31 "2009-05-29T23:28:12Z")
> [@Ravenman](#): > > Let me ask a specific question: Article V of the Constitution prohibits any state from being deprived of equal representation in the Senate without the consent of that state. > > Now, let’s say everyone gangs up on Texas and says they aren’t worth having two senators. Everyone votes for a constitutional amendment that limits Texas to 1 senator, except it is opposed by the sitting senators from Texas and the ratification of the amendment is opposed by the Lone Star State. > > Would the Supreme Court have a role in determining whether that amendment was constitutional? Absolutely. My answer may be a little repetitive, but here it is anyway: Article V defines how the constitution is amended-and article V is where you find the provision this amendment violates. The provision requiring a state’s consent to reduce its senators is not a limit on laws–it’s a limit on how the constitution can be amended. (laws don’t matter-they can’t affect how many senators a state gets) So the argument against it is really that this ‘amendment’ was not enacted as article V requires, and hence it isn’t a valid constitutional amendment-it’s just a piece of paper. So we have a question of constitutional law. We have a case or controversy–one side says yes, the other side says no. That is emphatically the kind of question it is the supreme court’s job to answer. Note again that this isn’t a question of whether the amendment is constitutional (which presumes it’s an amendment), but whether the constitution was validly amended. Also, if every other state was for this amendment, what they ought to do is first amend article V to remove the requirement that a state consent, which they can do without the consent of Texas, and then amend the constitution to give texas one senator). That would be a valid amendment. It is also the supreme court’s job to determine what an amendment to the constitution means (again, if there is a case or controversy over it)–that isn’t asking if the amendment is constitutional. A properly enacted amendment can’t be unconstitutional–by definition, as it’s part of the constitution. There can be (and often is) a question of how it changes the constitution, and how to read the new amendment together with the rest of the constitution. That’s a different question, though. [Previous page](https://boards.straightdope.com/t/does-the-us-supreme-court-have-the-power-to-overturn-a-constitutional-amendment/497819.md?page=1)