# Help me prove SCOTUS can't strike down Constitutional Amendments **URL:** \ **Category:** Factual Questions\ **Created:** [February 25, 2004, 3:44pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113 "2004-02-25T15:44:15Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Arcite](https://avatars.discourse-cdn.com/v4/letter/a/67e7ee/32.png) [@Arcite](https://boards.straightdope.com/u/Arcite)\ **Post date:** [February 25, 2004, 3:44pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/1 "2004-02-25T15:44:15Z")
I know this sounds ridiculous, but I’m having an argument on another message board with someone who’s claiming that the Supreme Court could strike down the Federal Marriage Amendment even if it passes. I can’t convince him that the Court can’t strike down amendments. Does anyone have a good cite from a knowledgeable legal source I could give him? I googled to no avail. It’s probably one of those things that’s so obvious few people would bother putting it in writing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 25, 2004, 4:00pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/2 "2004-02-25T16:00:47Z")
What would constitute proof? If he’s the sort to be convinced by this, you might try: “Hey, it’s never been done before! The Supreme Court overturned all sorts of federal laws, even the federal law on income taxes, but when the amendment passed, they were stuck with it. THAT proves they can’t overturn amendments.” I offer this suggestion because I assume you’ve tried the more normal approach of pointing out that the Supreme Court is not ABOVE the Constitution - it’s job is to interpret and apply the Constitution. The Constitution is the supreme law of the land, as it says itself in Article VI. ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [February 25, 2004, 4:42pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/3 "2004-02-25T16:42:14Z")
Does [usconstitution.net](http://www.usconstitution.net/constfaq_a7.html#Q124) count? > [@](#): > > Q124. “If a proposed amendment violates the Constitution, should the Supreme Court be able to block its ratification?” > > A. With only one exception, an amendment to the Constitution cannot, by definition, violate the Constitution. Think it through: assume for a moment that an amendment to remove freedom of speech was ratified by the states. The amendment violates the concept of free speech embodied in the 1st Amendment, for sure. A law doing the same thing would be unconstitutional. However, since we are not talking about a law, but instead an amendment, the effect would be to negate or nullify the free speech protections. The new amendment, as a duly ratified amendment, becomes a part of the Constitution. The Supreme Court would have no power to remove the amendment, and would, in fact, have to abide by it. ---
**Author:** ![micco](https://avatars.discourse-cdn.com/v4/letter/m/5f8ce5/32.png) [@micco](https://boards.straightdope.com/u/micco)\ **Post date:** [February 25, 2004, 4:50pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/4 "2004-02-25T16:50:04Z")
> [@Schnitte](#): > > With only one exception, an amendment to the Constitution cannot, by definition, violate the Constitution. They don’t seem to mention the exception. Am I missing something obvious? ---
**Author:** ![Shade](https://avatars.discourse-cdn.com/v4/letter/s/2bfe46/32.png) [@Shade](https://boards.straightdope.com/u/Shade)\ **Post date:** [February 25, 2004, 4:57pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/5 "2004-02-25T16:57:12Z")
But which ammendments take precedence over others? The most recent? The one that says it does? I wish I knew this, but unfortuntely not. If Ammendment 100 says “no xxxx, this takes precedence over all other ammendments” and ammendment says “yyyy is ok” and xxxx includes yyyy, what happens? What if they were the other way round? I assume this is provided for in the constitiution, but I don’t know where. But if there was doubt presumably the court would have to decide. (If an ammendment was passed prohibiting free speech, the first ammendment woud be effectively nullified, and presumably it would be the court’s job to recognise that, which could be described accurately but midleadingly and confusingly as “the supreme court striking down the first ammendment.”) ---
**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:** [February 25, 2004, 5:04pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/6 "2004-02-25T17:04:19Z")
It’s on a different page of the FAQ. Q57. “I am in the middle of a raging argument about amendments. Can a ratified amendment ever be ‘unconstitutional’?” A. No, with one current exception. By its very definition, an amendment is a part of the Constitution, and hence cannot be not constitutional. The exceptions are listed in Article 5; nothing baring the slave trade prior to 1808, and no change that denies a state its equal suffrage in the Senate, without its consent (so that a group of states cannot gang up on one state). ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 25, 2004, 5:29pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/7 "2004-02-25T17:29:22Z")
For a concrete example: If it were possible for an ammendment to be unconstitutional, then surely the 21st ammendment would be so? After all, “The eighteenth article of ammendment to the Constitution of the United States is hereby repealed” is a pretty blatent violation of the eighteenth ammendment to the Constitution. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 25, 2004, 6:39pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/8 "2004-02-25T18:39:20Z")
> [@micco](#): > > They don’t seem to mention the exception. Am I missing something obvious? As **kunilou** mentioned, Art. 5 of the Constitution says that no state can be deprived of its equal power in the Senate without that state’s consent. There’s question as to whether this restriction could be effective (I think it probably can’t), but nobody’s ever tried before so it hasn’t been put to the test. –Cliffy ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 25, 2004, 6:55pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/9 "2004-02-25T18:55:36Z")
> [@Shade](#): > > But which ammendments take precedence over others? The most recent? The one that says it does? I wish I knew this, but unfortuntely not. If Ammendment 100 says “no xxxx, this takes precedence over all other ammendments” and ammendment says “yyyy is ok” and xxxx includes yyyy, what happens? What if they were the other way round? I assume this is provided for in the constitiution, but I don’t know where. But if there was doubt presumably the court would have to decide. > > (If an ammendment was passed prohibiting free speech, the first ammendment woud be effectively nullified, and presumably it would be the court’s job to recognise that, which could be described accurately but midleadingly and confusingly as “the supreme court striking down the first ammendment.”) Courts will use the same rules of construction construing constitutional amendments that they use for other laws. If it is possible to interpret the two provisions in such a manner as to give effect to both of them, a court should apply that interpretation. If it is not possible to do so, the most recent amendment will be assumed to have displaced the earlier one in that respect. The “exception” the webpage mentions is the source of a con law brainteaser: is it possible to pass an unamendable amendment? if the 18th Amendment had a provision that it couldn’t be repealed, could the 21st have had any legal effect? My WAG is that an unamendable amendment isn’t constitutionally possible. Something to think about. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 25, 2004, 7:00pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/10 "2004-02-25T19:00:09Z")
> [@Shade](#): > > But which ammendments take precedence over others? The most recent? The one that says it does? I wish I knew this, but unfortuntely not. This is also an open question. I’m of the opinion that it should just be a matter of whatever came last has primacy, since it was written specifically in order to change those constitutional outcomes with which it is in conflict. Others think that there are certain Amendments which are either so tied to the modern understanding of the U.S. government and its powers that they are central to the document and cast their shadow over the rest unless a new Amendment were to be created with the explicit intent of revising a specific effect thereof. Usually the 1st and 14th Amendments are considered the really important ones, and sometimes the 10th and/or 11th as well. Indeed, there are some who partake of this view who have posited that some potential future amendments which attempted to impinge on the scope of the 1st or 14th Amendment would be unconstitutional, but I don’t think anyone really believes this very seriously. –Cliffy ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [February 25, 2004, 8:10pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/11 "2004-02-25T20:10:01Z")
The proposed flag burning amendment provides an example. Although it would have reversed a Supreme Court decision protecting flag burning under the first amendment, the proposed text would have read, in its entirety: > [@](#): > > The Congress shall have power to prohibit the physical desecration of the flag of the United States. No express reference to the First Amendment; instead, under ordinary statutory interpretation, this amendment would have been read to carve out an exception to the first amendment. ---
**Author:** ![LemonThrower](https://avatars.discourse-cdn.com/v4/letter/l/d2c977/32.png) [@LemonThrower](https://boards.straightdope.com/u/LemonThrower)\ **Post date:** [February 25, 2004, 8:42pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/12 "2004-02-25T20:42:59Z")
the Supreme Court could strike down an amendment as not properly adopted or on similar grounds. For example, the 17th amendment provides for direct election of senators, which arguable deprived states of THEIR representation in the Senate, and I doubt each state ratifies the 17th amendment. the SCOTUS could invalidate the 17th Amendment on the grounds that it was never consented to/ratified by EVERY state, although this is probably a tortured interpretation of article 5. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [February 25, 2004, 10:41pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/13 "2004-02-25T22:41:26Z")
I believe the Supreme Court has steered clear of any opinion about the ratification process, deeming it a political issue. SCOTUS works under the assumption that “If it’s written in the Constitution and everybody thinks it’s part of it, then that’s good enough for us.” When there were debates about states rescind their ratifications of the Equal Rights Amendment and the ability of the Congress to extend the ratification period, the Supreme Court’s silence was deafening. ---
**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:** [February 25, 2004, 11:17pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/14 "2004-02-25T23:17:00Z")
> [@BobT](#): > > When there were debates about states rescind their ratifications of the Equal Rights Amendment and the ability of the Congress to extend the ratification period, the Supreme Court’s silence was deafening. Did anyone ever bring a case to the Supreme Court over the ERA? And if so, did the Court refuse to hear it because, rescinded ratifications or no, the ERA never got enough ratifications to take effect? You really can’t criticize a court for not commenting on something that hasn’t been presented to it. ---
**Author:** ![Shade](https://avatars.discourse-cdn.com/v4/letter/s/2bfe46/32.png) [@Shade](https://boards.straightdope.com/u/Shade)\ **Post date:** [February 25, 2004, 11:28pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/15 "2004-02-25T23:28:46Z")
Thanks everyone for answers; this is really interesting. > [@pravnik](#): > > The “exception” the webpage mentions is the source of a con law brainteaser: is it possible to pass an unamendable amendment? if the 18th Amendment had a provision that it couldn’t be repealed, could the 21st have had any legal effect? My WAG is that an unamendable amendment isn’t constitutionally possible. Something to think about. I would have thought you could. I mean, the process for ammending the constitution, described in the constitution, is adhered to, so if that process was changed so it didn’t allow certain ammendments, it would seem obvious that that should also be followed. What is the counterargument? Of course, if everyone wanted a change, it would happen somehow, but it mightn’t happen constitutionally. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [February 25, 2004, 11:56pm UTC](https://boards.straightdope.com/t/help-me-prove-scotus-cant-strike-down-constitutional-amendments/231113/16 "2004-02-25T23:56:13Z")
Hmm, well researching further in the U.S. Constitution annotated, I came across this about extending the time to pass the ERA > [@](#): > > Litigation followed and a federal district court, finding the > issue to be justiciable, held that Congress did not have the power to > extend, but before the Supreme Court could review the decision the > extended time period expired and mooted the matter.\42\ > > ``` > \42\Idaho v. Freeman, 529 F. Supp. 1107 (D.C.D. Idaho, 1981), > > ``` > > prob. juris. noted, 455 U.S. 918 (1982), vacated and remanded to > dismiss, 459 U.S. 809 (1982). The crucial case on the Court’s role in the amendment process is Coleman v. Miller 307 U.S. 433 > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/307/433.html)** > > FindLaw's searchable database of United States Supreme Court decisions since