What if a cons. amendment violates the rest or the constitution?

Great Debates
21

[QUOTE=Polycarp]
As Saint Cad notes, the only possible circumstance in which an amendment to the Federal constitution might be invalid is if it awarded additional senators to one or some but not all states. (Well, technically, an amendment retroactively prohibiting the importation of slaves prior to 1808 would also fail in the same way, but that’s an amendment I doubt anyone would every attempt to put in place!)
[/QUOTE]

Why? If the constitution is amended, there is simply no power or provision to invalidate that amended constitution, short of amending it again. Now, an amendment giving some states more senators than others isn’t going to be passed, because why would a State vote to relinquish its power vis a vis other states? If, however, the requisite number of states did approve the amendment, it would now be a part of the constitution, and be as constitutional as any other provisions currently in effect.

[QUOTE=Saint Cad]
I’m still curious what the status of Corwin and the 13th Amd would be if it were ever ratified.
[/QUOTE]

My opinion is that, firstly, this amendment lacks the political will to get passed. But, let’s play along and assume it is passed. My argument is that the amendment

Says no amendment shall be made, which would restrict any future amendments from being made which invalidate its provisions. The 13th amendment, though, was passed about 150 years ago, and is not expressly overturned, nor prohibited, by this amendment.

22

[QUOTE=Atomicktom]
Why? If the constitution is amended, there is simply no power or provision to invalidate that amended constitution, short of amending it again. Now, an amendment giving some states more senators than others isn’t going to be passed, because why would a State vote to relinquish its power vis a vis other states? If, however, the requisite number of states did approve the amendment, it would now be a part of the constitution, and be as constitutional as any other provisions currently in effect.
[/QUOTE]

No.

Article V of the Constitution sets forth how the Constitution may be amended. In its provisions, it specifically states that:

.

So, the only way to deprive a state of its equal suffrage would be to first pass and ratify an amendment that rescinds this provision of Article V. THEN an amendment could be ratified that deprived a state of equal suffrage in the Senate.

And yes, there IS a power which could establish that an attempted amendment is invalid. It’s called the Supreme Court of the United States, and it is just as competent on that issue as it is on any other issue of federal constitutional law.

23

I’ve been quietly reading your eloquent answers, and I thank you for those. I was indeed thinking about the marriage amendment that surely will follow the California SSM decision. However, several other attempted amendments have come and gone that would seem to slap the face of constitutional tradition. For example, dozens of tries have been made to make the US “a Christian nation.”

24

[QUOTE=DSYoungEsq]
No.

Article V of the Constitution sets forth how the Constitution may be amended. In its provisions, it specifically states that:.

So, the only way to deprive a state of its equal suffrage would be to first pass and ratify an amendment that rescinds this provision of Article V. THEN an amendment could be ratified that deprived a state of equal suffrage in the Senate.

[/QUOTE]

I do not concur. I think if SCOTUS takes a look at the Amendment denying equal suffrage in the Senate and asks two crucial questions:

  1. If it were legal to amend that clause in the Constitution, why is it in Article V under amending the Constitution and not Article I under legislature?
  2. Why is it specifically said that it cannot be amended? Isn’t there a legal doctrine that no part of a law is extraneous, i.e. every part written into the law is necessary? I may be mischaracterizing this last part, but I’m sure a Dopey lawyer can figure out what I’m trying to say. And if the part about not amending the clause could be amended then the equal sufferage part be amended, then what is the point of saying it can’t be amended?

But here is the big question - Will SCOTUS review it or pawn it off as a “political question”?

25

[QUOTE=DSYoungEsq]
So, the only way to deprive a state of its equal suffrage would be to first pass and ratify an amendment that rescinds this provision of Article V. THEN an amendment could be ratified that deprived a state of equal suffrage in the Senate.

And yes, there IS a power which could establish that an attempted amendment is invalid. It’s called the Supreme Court of the United States, and it is just as competent on that issue as it is on any other issue of federal constitutional law.
[/QUOTE]

I’m not certain I agree with your point. While I’ll concede that the Supreme Court is empowered to interpret the Constitution, and pass judgment on whether laws pass constitutional muster, I don’t agree that the Supremes can invalidate a constitutional amendment, insofar as it is a part of the constitution. If the Supreme Court can invalidate this part of the constitution, are you saying they can invalidate other provisions as well, including those included in the original text?

I believe, based on your point about the Article 5, that the operative question is how should the Supreme Court reconcile conflicting parts of the constitution, should they exist.

I think the same issue arises, though, when you try and reconcile the matter of determining representation in Article 1, Section 2 (the 3/5 compromise) with the 14th amendment, Section 2 (representation is based on whole persons). Or the discrepancy between Article 1, Section 3 (“The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof”) and Amendment 17 (popular election of Senators).

In both such examples, the government didn’t have to pass an Amendment invalidating the original clause before passing another amendment enacting the new change. They simply passed the amendment; to the extent that it conflicted with the original text, it controls. Why wouldn’t the same formula apply to an amendment changing each state’s representation in the Senate (which, as I previously stated, I don’t believe would ever actually be passed by the requisite number of states, for obvious reasons)?

26

[QUOTE=Atomicktom]
In both such examples, the government didn’t have to pass an Amendment invalidating the original clause before passing another amendment enacting the new change. They simply passed the amendment; to the extent that it conflicted with the original text, it controls. Why wouldn’t the same formula apply to an amendment changing each state’s representation in the Senate (which, as I previously stated, I don’t believe would ever actually be passed by the requisite number of states, for obvious reasons)?
[/QUOTE]

I would argue that because the very amendment process itself in Article V which would be, and has been used in every amendment to the constitution, specifically excludes an amendment to deny a state equal suffrage in the Senate.

It is invalid on its face. I would also argue that DSYoung’s proposal to first repeal the part of Article V disallowing this amendment would be invalid as well as it violates the spirit of the constitution in that this portion shall FOREVER remain unamendable…

27

Hmmm… An amendment validly passed by Congres and validly ratified by the requisite number of states then becomes a part of the Constitutionm, and hence cannot be unconstitutional. But take a good look at what we’re saying – until the 38th state ratification passes, what it is, is simply a joint resolution of Congress proposing an amendment (I suppose with assorted ratifications already in place tacked on in some metaphysical way). It’s not an amendment until it has completed the ratification process (technically not until it’s proclaimed by the Commissioner of General Services, but that’s a formalized mandatory act on his part on getting that last required valid ratification).

Which means that if that joint resolution and/or its state ratifications turn out to fall short of legality in some way (e.g., hypothetically the Speaker of the House certifies passage although it was two votes short of the required 2/3 majority), the courts can act to void it. As would be the case with the “give California five senators amendment” [unless it provided for effectuation only on ratification by all 50 states] – it would not meet the constitutional criteria for a valid amendment even if it passed and was ratified in a way that would adopt any other amendment, owing to that clause about equal state representation in the Senate being protected already being part of the constitution.

28

[QUOTE=Polycarp]
Hmmm… An amendment validly passed by Congres and validly ratified by the requisite number of states then becomes a part of the Constitutionm, and hence cannot be unconstitutional. But take a good look at what we’re saying – until the 38th state ratification passes, what it is, is simply a joint resolution of Congress proposing an amendment (I suppose with assorted ratifications already in place tacked on in some metaphysical way). It’s not an amendment until it has completed the ratification process (technically not until it’s proclaimed by the Commissioner of General Services, but that’s a formalized mandatory act on his part on getting that last required valid ratification).

Which means that if that joint resolution and/or its state ratifications turn out to fall short of legality in some way (e.g., hypothetically the Speaker of the House certifies passage although it was two votes short of the required 2/3 majority), the courts can act to void it. As would be the case with the “give California five senators amendment” [unless it provided for effectuation only on ratification by all 50 states] – it would not meet the constitutional criteria for a valid amendment even if it passed and was ratified in a way that would adopt any other amendment, owing to that clause about equal state representation in the Senate being protected already being part of the constitution.
[/QUOTE]

I think you make a good point. Insofar as an amendment amending representation in the Senate does violate Article 5, I can see how the the proposed amendment could be invalidated by the court as unconstitutional.

But, I believe this would only apply to the proposed amendment, pre-ratification, and I don’t agree with the implication that “the court can act to void it.” The courts don’t issue advisory opinions and only address present controversies. If, however, the issue arised in a lawsuit (say, a victimized state brought suit to enjoin the passage of the amendment), then I can certainly see the court making a ruling based on Article 5.

Then again, it has been pointed out that Article 5 requires a state’s consent to deprive it of equal suffrage in the Senate, so I suppose it is also valid to argue that the amendment has not been ratified without unanimous consent. So…on preview, I think your post is spot on.

[QUOTE=Jtgain]
I would also argue that DSYoung’s proposal to first repeal the part of Article V disallowing this amendment would be invalid as well as it violates the spirit of the constitution in that this portion shall FOREVER remain unamendable…
[/QUOTE]

Is there really any portion of the constitution that can’t be amended? Certainly, changing some provisions would create a constitutional crisis, and probably undermine our system of government, which explains why they wouldn’t be amended, but is that the same thing as saying they can’t be amended?

29

If you wanted to favor more populous states without depriving any state equal representation in the Senate, perhaps the best thing to do is simply abolish the Senate and re-assign Senate functions somewhere else, no?

30

[QUOTE=Atomicktom]
Is there really any portion of the constitution that can’t be amended? Certainly, changing some provisions would create a constitutional crisis, and probably undermine our system of government, which explains why they wouldn’t be amended, but is that the same thing as saying they can’t be amended?
[/QUOTE]

Yes, according to Article V, no amendment can ever be passed which:

  1. Denies a state equal representation in the Senate.
  2. Outlaws the slave trade before the year 1808. (Obviously a moot point)

[QUOTE=Bearflag70]
If you wanted to favor more populous states without depriving any state equal representation in the Senate, perhaps the best thing to do is simply abolish the Senate and re-assign Senate functions somewhere else, no?
[/QUOTE]

I would think not. Surely anyone could see this as a backdoor attempt to get around a literal requirement while ignoring the spirit of the constitution (e.g. that there is to be a legislative body where all states have an equal vote).

31

[QUOTE=jtgain]
I would think not. Surely anyone could see this as a backdoor attempt to get around a literal requirement while ignoring the spirit of the constitution (e.g. that there is to be a legislative body where all states have an equal vote).
[/QUOTE]

With all due respect, JT, that comment is purely laughable. Take a browse through constitutional law threads here and find out ho many times someone speaking of the living spirit of the Constitution gets trounced by people demanding rigid adherence to either a literal reading of the text or interpreting the text as would Messrs. Jay, Randolph, Ellsworth, and Iredell in 1790 or thereabouts.

32

[QUOTE=Polycarp]
With all due respect, JT, that comment is purely laughable. Take a browse through constitutional law threads here and find out ho many times someone speaking of the living spirit of the Constitution gets trounced by people demanding rigid adherence to either a literal reading of the text or interpreting the text as would Messrs. Jay, Randolph, Ellsworth, and Iredell in 1790 or thereabouts.
[/QUOTE]

Spirit of the constitution, original text, or original thought; any interpretation of the Constitution has a belief that there is a bicameral legislature, and in one body each state has an equal vote.

By renaming the Senate something else, it still wouldn’t satisfy the Constitution anymore than renaming abortion so that Roe v. Wade no longer applies to the procedure, or that naming a particular church the Unofficial Official Church of the United States (See, it’s not reallly official, so no establishment of religion here!!) would make that stand up to scrutiny..