The American Constitution

The U.S. Constitution is the highest law in the land. If a law is held to contradict or violate the Constitution, then the law is void. This is not the case in many other constitutional democracies.

As for the question of whether an amendment could be enacted which permitted the persecution of a minority: yes, such an amendment could be enacted. Since amendments supersede contradictory law which was enacted before it, such an amendment would be valid and binding law.

The fact that an idea seems morally heinous or is stupid or impractical is not relevant to whether something can be part of The Constitution. The legality of slavery was recognized by The Constitution as it was originally enacted, with a provision that the importation of slaves would end twenty years after The Constitution went into effect.

Because the power of The Constitution is absolute, the framers intentionally made it difficult for it to be amended. While 27 amendments have been enacted, hundreds have been proposed and considered over the years, ranging from one abolishing child labor to one banning the burning of flags as an act of protest.

Making it difficult to pass an amendment is supposed to give people time to consider and debate proposed amendments sufficiently before they are enacted. This has not always worked in practice: Prohibition was permitted by one amendment, and then abolished by another.

This is one reason that a Constitutional Convention has never been convened to draft amendments. The framers of The Constitution were on unfamiliar ground when they framed it, and many of them thought it would be necessary after a time to tear it up and start fresh, guided my insights gained from the failings of their original effort.

This, obviously, did not happen. In modern times many people have expressed fear that a convention could result in a Constition which would be offensive to a large portion of the citizenry. For instance, some have argued that if a Convention was convened at the urging of people seeking to ban abortion, it might also enact provisions limiting freedom of religion to the “right” sorts of religions and freedom of speech to the “right” sort of speech.

“Due process” is an important concept which is difficult to define in exact terms. In fact, lawyers argue about whether something does or not amount to due process every day. Roughly, it means that a person is entitled to a minimal degree of fairness in the way the government conducts itself with respect to you, particularly in a court of law.

For instance, American courts must sometimes rule whether or not a person was granted minimal due process by a foreign government, in order to see if the U.S. should recognize that government’s decision. Another nation might give a defendant far fewer privileges while on trial. If the defendant is entitled to face and question his accusers, and has adequate access to information about the laws of that country and his rights under them, and can present evidence in his own defense, though, a court in the U.S. will likely find that the person was afforded due process and will let a decision stand.

Another example: if an American couple obtained an uncontested divorce in The Soviet Union, the U.S. would consider the people to
be married. This is because uncontested divorces were granted there merely by signing in a registry administered by civil servants. There was no hearing, and no judge. This meant that there was no legally trained authority who could advise the parties of the consequences of their actions and verify that they understood these consequences and were proceeding willingly. In other words, there was no minimum due process.

“Equal protection” is also difficult to define, and many, many laws have been struck down on the grounds that they did not grant it. Roughly, “Equal protection” requires that laws be applied so that there is not an arbitrary or unfair distinction drawn between one group or class of persons and another. One of the most important meanings of this in the years immediately after the 14th Amendment was ratified was that it assured that full rights of citizenship were granted (at least in theory) to former slaves: they had a right to vote, to serve on juries, to seek public office, etc.

Often the issues which come up in a discussion of equal protection are more arcane. Iowa had (and perhaps still has) a law saying that a person must be a resident of the state for a prescribed period of time before he or she can file for divorce there. It was argued before The Supreme Court that this denied equal protection of the laws to people who had only recently moved into the state. The Court ruled that this was not a violation of equal protection, after concluding it served a legitimate state interest–namely, that the state did not wish to become a destination for people seeking “quickie” divorces.

An additional observaton:

There is no time limit on how long a proposed amendment may circulate before it is enacted. Some amendments have built into their language a time limit within which they must be passed. It was not so with the 27th Amendment. It was proposed by James Madison along with the original ten amendments which constitute The Bill of Rights.

Jomo mojo,

YOu are right about the actual timing that the constitution was ratified before the ratification of the bill of rights, but you are ignoring the fact that the states only approved the constitution on the condition that a bill of rights would be added.

When the senate and house convened, it was not an accident nor a coincidence, that the first order of business was to write a bill of rights for the states to adopt.

The house and senate were not just sitting around day after day and then someone ventured that it would be nice to have some ammendments added.

The fact is that if the bill of rights were not written down as the first order of business and passed to the states for ratification, this country would not exist.

To think that the 13 states would remain a country without such a bill of rights is a complete lack of understanding of how we adopted our constitution and no knowledge of US history. You apparently have no knowledge at all of the federalists, the antifederalists, the debates for ratification, and the pledges/promises made to immediately get a bill of rights if the constitution was ratified.

The country was formed on the condition that we must have a bill of rights, and without it, no country.

The fact that the states used the house, senate, and the ammendment process to include the bill of rights, does not change at all the absoulte requirement of a bill of rights for the united states to be a country.

By the way, one of the founders, James Wilson of Pennsylvania, argued strenuously against the inclusion of a list of itemized rights. His reason was that such a list would be interpreted to mean that rights not mentioned would be regarded as non-existent. And to a great extent he was right. Ninth amendment (see I can spell it right) notwithstanding, many will argue that, for example, the “right to privacy” doesn’t exist because it isn’t called for by the Constitution. Scalia comes to mind.

I am not sure if a time limit is actually constitutional, since no time limit for approval is specified in the constitution. Also, it is unclear if a state can “unratify”(change its mind) once it has already ratified an ammendment, e.g. the ERA for women. There were some similar peculiarities/oddities with the various state approvals of the income tax ammendment. It has been debated whether all states correctly ratified that ammendment.

What is the reason why someone would build in language to put a time limit on passage?

Secondly, wanst the ERA time limit extended?

If it can be extended once, it can be extended again, cant congress tomorrow give another time extention to pass the ERA if they did it once before?

Are there other past ammendments that have failed to pass, needing only one or a couple of more states to get them passed, so that if 2 states today wanted such ammendments now, the 2 remaining states could ratify them on monday and the ammendments would then be in the constitution?

Some states ratified the Constitution with the understanding that the Bill of Rights would be at the top of the First Congress’s agenda. Yes, I’m aware of that. But whether their ratification would become void if the Bill of Rights had been ignored, well, I don’t see that as a slamdunk, Susanann. You would need an expert on the history of constitutional law to analyze the ins and outs of that “what-if” scenario.

Because as far as I can see, a ratification is a ratification. It would stand regardless of any prior deal. If a state were disgruntled at the failure to pass the Bill of Rights, I doubt they would have any way to back out of the Union. They might—might—vote to rescind their ratification of the Constitution, but that would open up one hell of a can of worms, and I don’t know if anyone could say for sure how it might turn out.

Even if a state took the drastic step of rescinding, after the Constitution was fully ratified, I don’t see any way that would invalidate the Constitution for the whole country. So your argument sure looks weak to me. Also, you don’t seem to have learned yet how to spell the word “amendment.”

Can anyone quote the 2 that were NOT ratified?

It seems like the 27th was one of the original 12 – what was the other one?

And is it “still in play”; that is, still available to ratified by enough states to reach the 3/4ths required?

t-bonham: How about I give you the whole of the twelve proposed?

http://earlyamerica.com/earlyamerica/freedom/bill/text.html

It seems to me that Articles I and II were not dealing with rights; therefore, they shouldn’t have been included in the document in the first place.

The other one was a limitation on the size of the House of Representatives:

If there were one Representative per 50,000 persons, we’d be looking at a House with with about 5800 Representatives. The amendment is still “in play,” but I don’t know which states have ratified it. It would be pretty ridiculous to do so today, of course.

You can read the original Bill of Rights as passed by Congress here. Articles 3-12 were ratified as the first ten amendments, and article 2 was finally ratified as the 27th a few years ago.

A bogey-man argument. You first have to assume that representatives from two-thirds of the states would pass such amendments, and then assume the even more unlikely scenario that the legislatures of three-fourths of the states would ratify the amendments.

Perhaps not a complete bogey-man argument. Amendments declaring an official State Church, or making it illegal to criticize the President, or proclaiming me Emperor with despotic powers, are not at all likely; however, there are a number of amendments (notably flag desecration, and conceivably a school prayer amendment) which might get the required two-thirds super-majority in the House, and which could very likely gain approval by the legislatures of 38 states, but for which the greatest hurdle would be getting to two-thirds in the U.S. Senate. (This has definitely been the pattern with the flag desecration amendment.)

Of course, whether or not you think a constitutional convention would be a good thing or a bad thing depends on whether you view the sort of constitutional amendments which tend to be narrowly defeated in the Senate as good amendments or bad amendments.

I dont think succession was a dirty word in the 1790’s.

I also dont think the other states would want to, or even have the power to, make New York and Virginia stay in the union if they wanted to back out because they did not get the Bill of Rights as was promised them.

Probably not, but I think it isn’t at all certain that states would have seceded. One strong motivation for writing the Constitution in the first place was that the Articles of Confederation resulted in a central government that was so ineffective that economic activity was hampered. And the founders were practical business men, planters, lawyers, a printer, etc. One of them, Robert Morris of Pennsylvania was one of the wealthiest in the United States.

The founders wanted a central government that could handle public works such a roads and harbors, establish a reliable money base and do all the other things needed in order that we could get our economic house in order.

For that reason, I don’t think secession was a slam-dunk if the Bill of Rights hadn’t been ratified.

Susanann: Secession. IIRC correctly, a couple of states had threatened to secede on various occasions.

+MDI, an example of an amendment that hasn’t passed in the eighty-odd years since it was introduced is this:

This amendment is introduced in every session of Congress and is held up in committee. (That is a good way to keep something from being voted on.)

States continue to ratify it anyway. The last to sign on was Illinois in May of this year.

Someday the other half of the population of the US will be guaranteed full rights. Amazing, isn’t it?

…except for the fact that women have been guaranteed equal rights under common law for decades.

That’s exactly the thought that struck me as I read the wording of the 9th amendment. I’m surprised I haven’t heard the 9th invoked more often in the “right to privacy” debates. Then again maybe when it has been invoked it didn’t quite register what they were talking about.

Which half? The ERA, were it ever passed, would also necessitate extending the draft to women, off the top of my head. Are there any current laws which are biased in favor of men?

Is being drafted a “right”?

No, Walloon, it’s an obligation.