A while ago, in this gun thread, Tranquilis claimed that the Bill of Rights has special protection from being altered by amendments, unless the protection is first removed. This link has the complete text of the Bill of Rights, and has links to the text to the rest of the Constitution as well. I can find nothing that says the Bill of Rights has any such special protection. My law student fiancee backs me up on this. Does anyone have any evidence to support Tranquilis’s claim?
Formally speaking, the only restrictions on the power of amendment set out in Article V are that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”–so, no “Two Dakotas is One Dakota Too Many” Amendment–Article V also prohibited any amendments before 1808 which would have modified the clauses in Article I, Section 9 regarding the slave trade (the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit”); as soon as 1808 rolled around, the African slave trade was abolished.
So, strictly speaking, an amendment could be passed repealing the first ten articles of amendment to the Constitution entirely, and it would face no greater hurdles (or any lesser ones) than any other amendment. (Also formally speaking, I don’t think the “Bill of Rights”, as opposed to this or that article of amendment, has any legal existence within the Constitution; they’re just the first ten amendments.) Of course, one might hope that the political hurdles to messing around with the Bill of Rights would be steep, but the enthusiasm shonw for such things as the Flag Desecretation Amendment (which has passed in the House fairly handily; barely failed to attain the required super-majority in the Senate, although a majority of Senators voted yes when it was brought up; and by all accounts would easily pass in the state legislatures) makes me less optimistic about that than I’d like to be.
I don’t get it; the preamble forbids alterations to the Bill of Rights? The preamble to the U.S. Constitution? This thing:
Before I call this “the stupidest thing I’ve ever heard” (not to mention “incredibly ignorant of the workings of the U.S. Constitution”), I’d at least like to hear the reasoning behind it. Anyone?
While I’m hear, though, I’d like to point out that the U.S. Supreme Court has ruled that the preamble has no legal standing (and therefore can’t permit or forbid anything).
No, the Bill of Rights does not have any special Constitutional protection. I would hope that they would not be changed, but you never know…
Hmm, just went to do some checking on my statement about the Supreme Court’s position on the preamble. I’ll look a little deeper, but I haven’t yet been able to find a case in which they actually say that, there may be none. It’s almost certainly assumed, however.
I’m gonna spend some time on this in the morning. But I believe that at least one court case has held that the provisions of the 14th Amendment modified prior amendments, though this may have been refering to the 11th Amendment protection granted to the states from being sued.
I agree with MEBuckner’s post, except for a small nitpick. The importation of slaves from Africa was outlawed in 1808 but not abolished. Enforcing the law wasn’t a high priority.
( I learned this from Howard Zinn; this is the best online cite I could find. There are also some interesting entries after 1808 in this timeline of the slave trade. )
Polycarp has advanced the idea that the equal suffrage in the Senate could be overturned with 2 amendments. The first would amend article five to remove the guarantee and a 2nd would eliminate the state equality in the upper chamber. Would DSYoungEsq or someone else care to share their learned opinion of this?
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Well thank you all for agreeing with me, but this isn’t going to be a very fun debate without someone to take the opposing view…
Cut the guy some slack. Maybe he meant the Preamble to the Bill of Rights?
…but I still can’t find anything specifically relevant. Maybe if you stretched things a bit (not our USSC of course:)) you could claim that they were abusing and misconstrueing their duties if they voided one of the original 10 amendments. I could see somebody claiming that the Bill of Rights was a clarification type add-on and to violate any of the restrictions placed on the Federal Government in the BoR was tantamount to becoming an illegitimate government. The concept behind most of the Bill of Rights was not to pass laws, but to publicly recognize certain rights that already existed even without official recognition.
So, in this spirit I agree that the Bill of Rights is sacred ground, and can not be changed. However, there is clearly no legal prohibition in the Constitution against it. Of course, seccesion isn’t specifically mentioned either, so we might have to settle the question in a similiar manner if it ever came to that point.
Well that’s why I said I wanted to hear a rationale before insulting the very notion. Still, there’s nothing in the preamble to the Bill of Rights that seems to suggest that you may not modify the first ten amendments. More importantly, it doesn’t matter. Just like the preamble to the Constitution, it has no legal standing whatsoever.
IANAL, but I do have some understanding of how constitutional law works. You wouldn’t need two amendments, strictly speaking. The most you would need is one amendment in which the first section declares the relevant portion of Article V to be null and void, and the second screws with the representation in the Senate as you see fit. You could also (I think) change the structure of the Senate in some specific way with an amendment that also delcares an exception to Article V. Basically, an amendment is in the clear so long as it addresses Article V’s objections . . . and probably even if it doesn’t; Article V doesn’t have more standing than any other part of the Constitution. In fact, the real question is this: Are the proscriptions laid out in Article V (or any such hypothetical proscriptions) in fact meaningless? Since any amendment that goes against said proscriptions can in the same breath declare them to be null and void and/or irrelevant to the matter at hand, I would think they are. Your thoughts?
Nothing in the Constitution is meaningless just because it can be altered by an amendment. The amendment process is a very long and involved one, specifically designed to prevent changes that are less than extremely important to the nation. (Well, I guess Prohibition was kinda stupid, but they still had to go through the process.) So, an amendment declaring the proscription void, then proceeding to take away South Dakota’s Senators, could possibly be proposed. But it would certainly never gain the support of 3/4ths of the states, especially the smaller ones that are in the same position. Remember that smaller states have equal say in the Senate, but not in the House of Representatives. An amendment to change anything in the Bill of Rights would meet even stiffer political resistance, despite having no such constitutional protection (at least as far as we have been able to determine so far). In any case, amendments have no force until they are ratified and take effect, which could take years.
I’m not so sure that that’s true in this case. Article V says that no state, through the amendment process “without its consent, shall be deprived of its equal suffrage in the Senate.” If that can be altered by the same amendment process it tries to regulate, than I would think that it is essentially useless.
A closer reading of the Article, however, suggests that I might have been wrong, in part. Article V states that amendments (after having been ratified by 3/4 of the states) “shall be valid to all intents and purposes, as part of this Constitution . . . provided that . . . no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Therefore any amendment which does deprive a state of equal suffrage in the Senate is not valid as part of the Constitution. This certainly makes it seem like you can’t leave this section of Article V intact and just declare an exception; in order to deprive a state of equal suffrage, you’d probably have to strike it from the document (though I suppose you could alter the text of the section to permit your amendment w/o striking it completely). I still maintain that you could do it all in one amendment, however.
What I said, way back when, was that to change the Senate from two-senators-per-state to something else, you’d first have to pass an amendment ratified by every state superseding the provisions of Article V, and then could adopt an amendment setting up the new system. I see no reason why they could not be combined into one – but to be a valid amendment, it would require ratification by every state, under the terms of Article V.
It would be an interesting legal argument whether an amendment could be passed in the normal way that rewrites Article V to remove that requirement, since it does not protect itself, but only the provision of equality in the Senate. I think you could make a case either way.
Bottom line, however, to address the OP rather than the hijack that mentioned me, is that it’s difficult but not impossible to amend the Constitution, and the Bill of Rights has no special protection other than its status as eleven amendments to the Constitution.* (This also goes for the 14th Amendment, which is what people usually mean when they start discussing constitutional rights, since Congress is not in the habit of violating the Bill of Rights on a regular basis, and state and subsidiary legislative bodies tend to do it much more frequently.)
[sub]* Eleven? Yep. Articles of Amendment I through X and XXVII, the latter being, IIRC, the second of the twelve originally proposed in the Bill of Rights, which passed #3 through #12 as the first ten amendments.[/sub]
I really don’t see how this could be the case. While unanimous ratification would constitute “consent” as per Article V: (1) Why would you need unanimous ratification as opposed to just the approval of the state(s) in question? Article V never mentions anything about unanimous ratification. (Or are you saying that every state would be affected by a change in representation for, e.g., South Dakota because the “equality” of its suffrage in the Senate would be affected?) (2) More importantly, you don’t need consent from a state to take away its Senators if you remove that requirement from the Constitution with an amendment. How could it be otherwise?
Exactly as it says in my sig line, but in this case I don’t think there is anything to debate. Now, I personally believe that it would be a good thing if parts of the Bill of Rights were immune to amendment, but the fact is, quite simply, that they aren’t.
Sorry I misrepresented your point, Poly.
I didn’t understand it and I guess I still don’t. Why bother with 2 amendments if you still rely on unanimous consent? A single amendment would work provided it proclaimed itself law only upon ratification by the last state.
Just my 2sense
You only need unanimous consent of the states if you need to change the provision about equal representation in the Senate for each state.
You could then adopt, by the 2/3 - 3/4 process, an amendment that, say, gave California two extra Senators without requiring it to split into two states. Or distributing Senators like Representatives. Or allowing Cabinet members voice and vote in the Senate (though you might make a case that that would not be “depriving a state of equal representation” but just adding more members to the Senate, and could pass without the unanimous-ratification procedure.) Or whatever you chose to do that would get enough votes to pass.
I had assumed that an amendment that changed how the Senate was composed would require a previous amendment to supersede the Article V prohibition. But if you circumvented or modified the Article V rule in the same amendment and required unanimous ratification, I can see how it could be done with one amendment.
You can’t give California extra Senate seats under the normal amendment process because those states that didn’t ratify it would have their equal suffrage in the Senate removed without their consent.
Furthermore, the fifth article protects equality, not superiority. That is, if all states agreed to give extra Senators to California, except Cali itself the amendment wouldn’t be valid. Giving a state extra representation in the Senate violates their equality.
[sub]( OK I admit it, I’m just floating the later argument. )[/sub]
Just my 2sense
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I missed the “then” in “You could then adopt”.
Yes, I agree, Polycarp. That is my understanding as well.
That 2nd argument is still floating if someone wants to snipe at it.
Just my 2sense
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