# Fact-based legal Q: Precedent for exclusionary amendments in the U.S. Constitution? **URL:** \ **Category:** Factual Questions\ **Created:** [February 24, 2004, 3:49pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904 "2004-02-24T15:49:44Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![WordMan](https://avatars.discourse-cdn.com/v4/letter/w/e8c25b/32.png) [@WordMan](https://boards.straightdope.com/u/WordMan)\ **Post date:** [February 24, 2004, 3:49pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/1 "2004-02-24T15:49:44Z")
So Bush will go ahead and support an amendment proclaiming marriage to be between man and woman only. I don’t know my judicial/legal history - any lawyers or legal scholars out there who can describe where this type of exclusionary amendment has been established before? - Which article or amendment to the Constitution? - Did the change endure (e.g., Prohibition - a different subject - was put in place then repealed)? - Has the issue remained an issue? (e.g., slavery was protected in the original Constitution, much to the shame of the U.S., and remained a divisive issue through the Civil War and to the present day). In other words, can we put this proposed amendment in context? Thank you for any information you can provide. NOTE: This thread is NOT for anyone’s (including my) opinion on this issue - I am sure there are plenty in Great Debates and IMHO. I am looking for fact-based precedents…thank you. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 24, 2004, 4:24pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/2 "2004-02-24T16:24:06Z")
There are numerous failed amendments proposed every session of Congress, most of which never even make it to committee. There have been failed amendments that proposed such things as taking citizenship away from anyone accepting a title of nobility for a foreign government, removing automatic citizenship of children born in the U.S. to non-resident parents, prohibiting abortion, stating that no amendment abolishing slavery shall be added to the Constitution, and on and on. More about failed and proposed amendments [here](http://www.usconstitution.net/constamprop.html) and [here](http://www.usconstitution.net/constamfail.html). ---
**Author:** ![moriah](https://avatars.discourse-cdn.com/v4/letter/m/b2d939/32.png) [@moriah](https://boards.straightdope.com/u/moriah)\ **Post date:** [February 24, 2004, 6:42pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/3 "2004-02-24T18:42:43Z")
Don’t forget my favorite stalled proposed amendment: prohibiting US flag burning. If that one can’t get any steam behind it… ---
**Author:** ![dqa](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dqa](https://boards.straightdope.com/u/dqa)\ **Post date:** [February 24, 2004, 8:57pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/4 "2004-02-24T20:57:59Z")
With regard to “exclusionary”, your question was a bit unclear. But it is interesting to consider in what cases the Constitution excludes certain people or groups of people from rights enjoyed by most other citizens. Here’s what I found: **Article I:** Excludes from the House and Senate those who don’t meet age requirements or duration of citizenship. Excludes members of Congress from holding federal office during their term. Excludes federal officeholders from serving in Congress. Excludes federal officeholders from receiving gifts or titles from foreign dignitaries. **Article II:** Excludes members of Congress from being electors. Excludes from the Presidency those who don’t meet age requirement, or those not natural born citizens, or those not resident during the previous 7 years. **Amendment XIV:** Excludes from office any person who “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies”. **Amendment XXII:** Excludes 2-term presidents from running for re-election. These are all explicit exclusions; there may be some implicit exclusions that I overlooked. It appears the proposed marriage amendment will not be an explicit exclusion i.e. “No woman shall marry another woman”, but rather an implicit one. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 24, 2004, 9:06pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/5 "2004-02-24T21:06:57Z")
The Constitution does not describe, prescribe, nor prohibit the ways it can be amended. The previous amendments may be interesting in what they say or the way they came about, but they cannot be used as precedent for any new amendment. The proposed marriage amendment can hardly be described as exclusionary, even if that is the underlying intent. It prescribes a certain course of action. Look at Sixth and Seventh Amendments of the Bill of Rights for similar descriptions. The Income Tax amendment also says that Congress shall have the power to do such and such. If you want something exclusionary, the First Amendment excludes about as many courses of action as you can possibly imagine. This proposed amendment is not in least out of line with what has gone before. Whether is it good public policy is a completely different question, but that nothing to do with whether it’s a proper amendment. ---
**Author:** ![WordMan](https://avatars.discourse-cdn.com/v4/letter/w/e8c25b/32.png) [@WordMan](https://boards.straightdope.com/u/WordMan)\ **Post date:** [February 25, 2004, 1:30pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/6 "2004-02-25T13:30:30Z")
**dqa** - thanks for the analysis. **Exapno** - I take your point: the proposed amendment has nothing in it that _a priori_ would prohibit it from being considered as part of the Constitution. It’s political intent, however, may be an very different thing. But in a purely “could it be included” analysis, there is nothing preventing that. **moriah** - I hear you about the anti-flag burning amendment. By the same token the ERA for women couldn’t get over either. Bottom line, supporting an amendment is not the same as passing it (and opposing it is not the same as seeing it defeated), so this one has a long road ahead. I was just curious about precedents. Thanks all. ---
**Author:** ![WordMan](https://avatars.discourse-cdn.com/v4/letter/w/e8c25b/32.png) [@WordMan](https://boards.straightdope.com/u/WordMan)\ **Post date:** [February 25, 2004, 1:34pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/7 "2004-02-25T13:34:06Z")
> [@WordMan](#): > > **moriah** - I hear you about the anti-flag burning amendment. By the same token the ERA for women couldn’t get over either. I just re-read this and am concerned that it might be mis-interpreted. My point is that, while I see moriah’s point that an amendment that feels like the ban-gay-marriage proposal couldn’t get passed (i.e., banning flag burning), other proposed amendments which are meant to be more inclusionary, like the ERA, also have trouble getting passed. Basically, anything moving from the status quo seems to have difficulty, which is not surprising. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 25, 2004, 1:45pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/8 "2004-02-25T13:45:24Z")
A very useful source of information regarding the Constitution and its amendments is [USConstitution.net](http://www.usconstitution.net/const.html) It includes some information about proposed amendments that have failed ratification, as well as stories behind amendments that were passed and ratified. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [February 25, 2004, 2:20pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/9 "2004-02-25T14:20:05Z")
> [@Exapno Mapcase](#): > > The Constitution does not describe, prescribe, nor prohibit the ways it can be amended. It used to. Article V includes language, no longer operative, prohibiting sections of the Constitution regarding slavery and taxation from being amended until after 1808. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 25, 2004, 4:39pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/10 "2004-02-25T16:39:12Z")
The bottom line is that getting a constitutional amendment passed on anything is a prolonged and difficult process that usually ends in failure. Vocal advocates of an issue may be enough to get a proposal started, but getting an amendment actually enacted into the constitution requires much broader public support. My guess is that a “no gay marriage” amendment isn’t going to get that support. The Bush administration is probably declaring its support for this idea to feed some red meat to its conservative faction but knows that nothing real will come out of it. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [February 25, 2004, 11:11pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/11 "2004-02-25T23:11:43Z")
> [@moriah](#): > > Don’t forget my favorite stalled proposed amendment: prohibiting US flag burning. Technically, it didn’t say that. What that proposed amendment did was authorize Congress to pass a law prohibiting flag burning. In effect, carve out an exception to the Freedom of Speech part of the 1st Amendment. So possibly, the Amendment could have passed, but Congress might then not pass an anti-flag-burning law. Or Congress might pass it, but the next Congress repeal it. ---
**Author:** ![LemonThrower](https://avatars.discourse-cdn.com/v4/letter/l/d2c977/32.png) [@LemonThrower](https://boards.straightdope.com/u/LemonThrower)\ **Post date:** [February 26, 2004, 2:18am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/12 "2004-02-26T02:18:36Z")
Don’t forget the numerous amendments implemented by the SCOTUS itself. For example, several aspects of the bill of rights that are expressly limited to Congress or the States have been “amended” to apply to both Congress and the States. The Tenth Amendment was repealed, or at least declared a “truism” which is the functional equivalent of being repealed, and several new rights were found in the overlapping shadows of the First and Fourth Amendments. I’m not sure what you mean by exlcusionary, but it is now settled that a State’s right to pass a law abridging the freedom of speech, press or religion is excluded form the universe of laws that pass constitutional muster. ---
**Author:** ![constantine](https://avatars.discourse-cdn.com/v4/letter/c/3bc359/32.png) [@constantine](https://boards.straightdope.com/u/constantine)\ **Post date:** [February 26, 2004, 2:53am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/13 "2004-02-26T02:53:11Z")
> [@LemonThrower](#): > > Don’t forget the numerous amendments implemented by the SCOTUS itself. > > For example, several aspects of the bill of rights that are expressly limited to Congress or the States have been “amended” to apply to both Congress and the States. The Tenth Amendment was repealed, or at least declared a “truism” which is the functional equivalent of being repealed, and several new rights were found in the overlapping shadows of the First and Fourth Amendments. > > I’m not sure what you mean by exlcusionary, but it is now settled that a State’s right to pass a law abridging the freedom of speech, press or religion is excluded form the universe of laws that pass constitutional muster. This is just silly. You are–for rhetorical effect I gather–attempting to blur the distinction between the process of amending the Constitution, i.e. following the process set forth within the Constitution for changing the text of the Constitution itself–with the process of judicial decisionmaking under the Constitution. The Supreme Court has “implemented” amendments only in the sense–and this is not the sense that I think you intended–that it has interpreted those amendments. It has told us what they mean. Many of us (myself included for whatever that’s worth) often question the Supreme Court’s decisions in this (and many other) regards. But your post is not responsive to the OP. In response to the OP, I would say that I am not sure how to answer the question. I don’t think I’m just playing semantinc games (at least I hope I’m not) when I say that (almost?) any rule can be framed as “exclusionary” or not. As to putting it in context, well, contrary to what some others have said, I think this is a fairly oddball amendment. Full confession: I hate this amendment, and I think gays ought to be allowed to marry, but even putting that aside, it seems strange to me in the context of other amendments to the Constitution. It doesn’t seem directly tied to (1) setting forth individual rights as against the government (e.g. free speech, voting, (2) providing new powers to the federal government (e.g. taxing income, prohibiting alcohol), or (3) the structure of government (e.g. rules for electing senators, powers of the vice president, etc.). In fact, it seems entirely based on protecting a status quo enjoyed by a majority of Americans. (I guess that’s what you meant by exclusionary). ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [February 26, 2004, 3:20am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/14 "2004-02-26T03:20:18Z")
> [@Exapno Mapcase](#): > > The Constitution does not describe, prescribe, nor prohibit the ways it can be amended. > [@Otto](#): > > It used to. Article V includes language, no longer operative, prohibiting sections of the Constitution regarding slavery and taxation from being amended until after 1808. Actually it still does. No amendment to the Constitution may be deprive any state of its equal suffrage in the Senate… unless the amending clause itself is first amended to remove that proscription. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [February 26, 2004, 3:24am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/15 "2004-02-26T03:24:49Z")
Whoops! I should have said that no state can be deprived of its equal suffrage in the Senate _without its consent_. An amendment introducing proportional representation to the Senate that stipulated it wouldn’t go into effect until ratified by _every_ state would be perfectly constitutional. ---
**Author:** ![dqa](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dqa](https://boards.straightdope.com/u/dqa)\ **Post date:** [February 26, 2004, 5:28am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/16 "2004-02-26T05:28:13Z")
> [@2sense](#): > > Whoops! I should have said that no state can be deprived of its equal suffrage in the Senate _without its consent_. An amendment introducing proportional representation to the Senate that stipulated it wouldn’t go into effect until ratified by _every_ state would be perfectly constitutional. What would be the status of such an amendment when 3/4 of states had ratified it? Would it technically be part of the constitution, but not in effect per its own terms? Or would it not be part of the constitution, because the amendment’s own wording trumps the 3/4 rule in Article V? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2004, 5:56am UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/17 "2004-02-26T05:56:12Z")
> [@Exapno Mapcase](#): > > The Constitution does not describe, prescribe, nor prohibit the ways it can be amended. In addition to the no-longer-operative material mentioned by **Otto** , there is one other exclusion to amendment: No state may be deprived of equal representation in the U.S. Senate without its consent. Presumably the laws proposed in the past making ex-Presidents or representatives of Territories eligible for voice and vote in the Senate would preserve state equality of representation, just dilute it a bit. But not even an amendment to the Constitution can say “Wyoming, Delaware, and Alaska shall have a single senator, as shall any newly admitted state, but all other states shall be represented by two senators” unless an amendment repealing that clause is first passed and ratified. Whether that amendment would require ratification by all 50 states rather than the three-quarters requirement is a debatable point. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 26, 2004, 4:27pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/18 "2004-02-26T16:27:58Z")
> [@dqa](#): > > What would be the status of such an amendment when 3/4 of states had ratified it? Would it technically be part of the constitution, but not in effect per its own terms? Or would it not be part of the constitution, because the amendment’s own wording trumps the 3/4 rule in Article V? My view is that this clause limiting the amendments which can be made to the Constitution is ineffective, and so was the clause preserving the importation of slaves thru 1808. However, since no otherwise-valid amendment has yet been enacted (probably) that would challenge these restrictions, there’s been no cause to develop a definitive answer. –Cliffy ---
**Author:** ![LemonThrower](https://avatars.discourse-cdn.com/v4/letter/l/d2c977/32.png) [@LemonThrower](https://boards.straightdope.com/u/LemonThrower)\ **Post date:** [February 26, 2004, 11:52pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/19 "2004-02-26T23:52:02Z")
Constantine - past SCt decisions have had an effect equivalent to an amendment to the Constituion, and some of these were exclusionary, even if these Sct decisions were not labeled “amendments”. So to be thorough, one should address these. Separatlely, IMHO if you have an amendment to deprive states of their representation that is passed by only 3/4ths, the SCt should determine that it was not validly ratified because this type of amendment would require the consent of the states losing voting power. ---
**Author:** ![sibyl](https://avatars.discourse-cdn.com/v4/letter/s/b9e5f3/32.png) [@sibyl](https://boards.straightdope.com/u/sibyl)\ **Post date:** [February 26, 2004, 11:58pm UTC](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904/20 "2004-02-26T23:58:36Z")
So could an amendment could be passed that prohibited further amendments to the constitution? Or how about an amendment to the constitution that prohibited something (for example, abortion), and declared itself the last amendment to the United States constitution, saying the amendment process is no longer valid. [Next page](https://boards.straightdope.com/t/fact-based-legal-q-precedent-for-exclusionary-amendments-in-the-u-s-constitution/230904.md?page=2)