I’ve been reading through the 27 Amendment to the US Constitution. I would like confirmation on whether Articles 5, 6 and 7 were ever amended. I don’t believe so. I have not found any.
I’m not sure what “confirmation” you’re looking for. You’ve read the 27 extant amendments. None of them amend Articles 5, 6, or 7.
(Article 5 provides that Article 1, Section 9, Clause 4, on direct taxation, may not be amended until after 1808. The Sixteenth Amendment does amend that section, but it didn’t do so until 1916, so it didn’t actually involve Article 5.)
Thanks gdave. That solves that.
I’m not sure how you could amend Article 7. That article just says that the proposed Constitution would go into effect when it was ratified by nine states.
And it is debatable whether the Sixteenth Amendment involved an amendment to the “direct tax” clause because, in short, nobody has been able to figure out what in the hell a direct tax even is. It is definitely a ban on a capitation tax because the Constitution literally bans capitation taxes or “other” direct taxes. One of the first taxes the feds enacted was a tax on carriages and the Supreme Court said that wasn’t a direct tax. Ever since, lawyers have been scratching their heads and saying, “Well, if that isn’t a direct tax, then what is”? And the Supreme Court has kicked the can on everything since then.
I have heard arguments that a wealth tax or a federal property tax would be an impermissible direct tax, but as this is GQ, I don’t think anyone can answer that with any confidence.
Well, suppose you passed an amendment that says, “Article 7 is hereby repealed. This Constitution shall only be in effect if ratified by 100 states and prior to January 1, 1950.” The Constitution would thereby be retroactively not in effect, including the amendment you just ratified.
It is sort of like the unamendable provision that states cannot be deprived of their equal representation in the Senate. What if you passed an amendment repealing that clause, and then passed an amendment allocating Senate seats based on population? What if you did it all in one amendment?
One could say no because Article 5 which gives us the power to propose amendments disallows such an amendment. But at what point does the dead hand of the past just die? Those long dead white guys in Philadelphia can bind us for all eternity? They had their shot, and now we want to do something different. They can tell us no? Why can’t we tell them no?
Modnote: To continue the discussion, I’ll move this to IMHO now. It isn’t framed as a debate so this should be the better forum.
(started in GQ)
That’s my point. Article 7 just says the Constitution is in effect. If you make any changes to that article, you’re not amending the Constitution, you’re repealing it.
Well, not that I think this would ever happen, but for the sake of argument, you could amend Article 7 to say that the Constitution must be re-ratified every 20 years or a new Constitutional Convention is automatically called.
And considering the Constitution itself was built upon the rubble of the Articles of the Confederation (as the Supreme Court itself noted in its decision in Texas v. White, when it held that secession was unconstitutional), it’s not beyond the realm of possibility that the Constitution might be amended to the point of repeal. At which point, yes, that amendment would no longer have the force of law, but then neither would anything else in the Constitution, so… mission accomplished.
Maybe this is just a difference in philosophical viewpoints but I feel this would not be an amendment of Article 7. Article 7 just says the Constitution is in effect; as long as the Constitution is in effect then Article 7 is intact and its meaning is unchanged. So any amendment made to the Constitution, including one which puts it up for periodic re-ratification, is just reaffirming the ongoing existence of the Constitution.
The only way you could effectively change Article 7 would be by saying the Constitution is no longer in effect. And if you do that, you’re not amending the Constitution. The act of amending some portion of the Constitution is based on the premise that the Constitution as a whole is in effect.
But that is an amendment. It changes how and if the Constitution is in effect. As it stands now, it is in effect for all time because 9 states ratified it. If you amended it by saying it is in effect for 20 year periods so long as it is re-ratified, that is a change, an amendment.
Again, I acknowledge that this is a philosophical view. From my point of view, all Article 7 says is that the Constitution went into effect when nine states voted on it; which happened back on June 21, 1788. Every change that’s been made to the Constitution since then has been based on the premise that the Constitution is in effect.
An amendment that said the Constitution might not be in effect in the future would not change the fact that it went into effect back in 1788.
True. Same as the 12th Amendment does not change that Aaron Burr was VP when it was ratified.
It has been discussed before, most of the Amendments to the US Constitution function along the lines of superceding an extant provision or of expanding or limiting or clarifying it, without mentioning it directly (or adding a provision missing in the then-current text). I think the 21st is the only one that explicitly points out a prior provision for repeal.
This . . . isn’t quite right. The Constitution most certainly doesn’t ban capitation or other direct taxes, it merely specifies that if they are assessed, they must be laid “in Proportion to the Census or Enumeration herein before directed to be taken”.
Congress did indeed assess a tax on carriages, personal property, in 1794, and did not lay it in proportion to population (rather, it was in proportion to the number of carriages), and the Supreme Court found that to be kosher because not a direct tax. But Congress also assessed taxes on real property, which all agreed to be a direct tax, in proportion to population to finance the Quasi-War with France, the War of 1812, and the Civil War. These taxes did not give rise to litigation, because Congress agreed that they were direct taxes, and assessed them according to population which required a complicated two-step assessment process.
Finally in 1895 the Supreme Court construed an income tax as a direct tax, and since it was not and effectively could not be assessed in proportion to population, it was unconstitutional. This was eventually overridden by the Sixteenth Amendment in 1913.
So the Sixteenth Amendment did indeed amend the Direct Tax clause, by carving out an exception for direct taxes (as defined by the Supreme Court) that were income taxes. But to the point of this thread, it didn’t amend Article V which forbade any amendment to the direct tax clause until 1808, because it didn’t need to because 1808 was long since in the past.