# Which constitutional laws can be proven to have been irretrievably weakened or neutralized? **URL:** \ **Category:** Great Debates\ **Created:** [December 28, 2017, 3:23am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443 "2017-12-28T03:23:32Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Blue\_Blistering\_Barnacle](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blue_blistering_barnacle/32/3386_2.png) [@Blue\_Blistering\_Barnacle](https://boards.straightdope.com/u/Blue_Blistering_Barnacle)\ **Post date:** [December 29, 2017, 9:33pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/41 "2017-12-29T21:33:17Z")
> [@TSBG](#): > > David, I think I’m still not getting you and I hope you can clear this up for me. The Constitution, and its amendments, are not exactly laws. They are a governmental framework (possible better analogy here?) within which laws can be enacted. The constitution can’t be unconstitutional; only laws enacted by Congress, or executive actions by the president, can be found to be unconstitutional. > > There are other circumstances in which the Supremes might end up ruling on the unconstitutionality of state laws and actions, and these can in fact be quite consequential–eg, Loving v Virginia, or Hollingsworth v Perry, but I’m not sure if that’s what your question is about. Is this entirely true? I am noone’s expert on the constitution, but surely it must be possible to have amendments which are contradictory? Kinda like 18th and 21st amendments. I mean, suppose I manage to get ratified 2 amendments. The first says the sky is blue. The second says the sky is not blue. What happens then? BTW, I like your expression- “a governmental framework … within which laws can be enacted”. To the extent that the constitution is a rulebook for laws, I think it works well. Constitution can become a problem when they become containers of national or ultrapowerful laws; I think Prohibition is an example of this. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [December 29, 2017, 10:13pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/42 "2017-12-29T22:13:52Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … > Which part of “upheld the District Court on other grounds” makes you think the Origination Clause is dead? The DC Circuit didn’t have to rule on the origination issue because it found that PPACA was not a revenue bill. And yet the circuit court took the time to add in their opinion on the Origination Clause. Go figure as to why. And the Appeals Court denied en banc and SCOTUS denied cert. So the opinion stands. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 29, 2017, 10:40pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/43 "2017-12-29T22:40:46Z")
> [@Iggy](#): > > And with that precedent, the Origination clause is effectively dead. Did you read my post? Because I talked about how the Republican House would pass revenue bills in a strategic manner so as not to provide opportunities for the Senate to amend them with unrelated tax provisions. Besides, if the origination clause was dead, the House would not blue slip (automatically reject) de novo Senate tax provisions. Which still happens on a fairly regular basis, maybe a couple times per congressional session. ---
**Author:** ![nelliebly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nelliebly/32/5422_2.png) [@nelliebly](https://boards.straightdope.com/u/nelliebly)\ **Post date:** [December 29, 2017, 10:53pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/44 "2017-12-29T22:53:35Z")
> [@Saint\_Cad](#): > > You are letting the House of Representatives off the hook on this one. I was indeed, and thanks for pointing it out. I think it’s worth noting, however, that the Fourteenth Amendment was ratified prior to the readmission of Southern states to the Union and their representatives to the House. once Southern states were readmitted to the Union in 1870, getting House approval to agree that the 14th Amendment abridgement clause had been violated would have been impossible and reducing their own representation would have been impossible. ---
**Author:** ![nelliebly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nelliebly/32/5422_2.png) [@nelliebly](https://boards.straightdope.com/u/nelliebly)\ **Post date:** [December 29, 2017, 11:22pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/45 "2017-12-29T23:22:08Z")
> [@Blue\_Blistering\_Barnacle](#): > > Is this entirely true? I am noone’s expert on the constitution, but surely it must be possible to have amendments which are contradictory? > > Kinda like 18th and 21st amendments. > > I mean, suppose I manage to get ratified 2 amendments. The first says the sky is blue. The second says the sky is not blue. What happens then? > BTW, I like your expression- “a governmental framework … within which laws can be enacted”. To the extent that the constitution is a rulebook for laws, I think it works well. Constitution can become a problem when they become containers of national or ultrapowerful laws; I think Prohibition is an example of this. The 21st Amendment _repealed_ the 18th Amendment. There weren’t two standing amendments that contradicted each other. It may be theoretically possible to have two contradictory amendments, but to what end? Why would any rational person want such chaos? On a practical level, the two-thirds of Congress and three-fourths of state legislatures that ratified the first of the two amendments wouldn’t approve the second one unless it included language repealing the first one. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 2, 2018, 7:17am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/46 "2018-01-02T07:17:57Z")
> [@](#): > > As is the Guarantee Clause (see Luther v. Borden). That was killed when SCOTUS punted on whether or not a few people in a section of Virginia could stage a coup against the legally elected representatives of that sovereign state. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 2, 2018, 7:28am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/47 "2018-01-02T07:28:13Z")
> [@nelliebly](#): > > On a practical level, the two-thirds of Congress and three-fourths of state legislatures that ratified the first of the two amendments wouldn’t approve the second one unless it included language repealing the first one. Technically the Corwin Amendment could still be ratified and it would be quite interesting with what SCOTUS would consider “domestic institutions” and “persons held to labor or service” so as not to overturn the 13th Amendment. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 2, 2018, 7:37am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/48 "2018-01-02T07:37:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Which part of “upheld the District Court on other grounds” makes you think the Origination Clause is dead? The DC Circuit didn’t have to rule on the origination issue because it found that PPACA was not a revenue bill. But if it was not a revenue bill, then how could the Senate add amendments that were not germane (i.e. add taxes)? That is a violation of Senate Rules. The actual problem is that SCOTUS declared the Obamacare penalties to be taxes making them Constitutional, but now that runs afoul of the Origination Clause. If you’ll remember the Pubs objected to the penalties on that grounds and the Dem Senators said (and quite possibly believed) they were not taxes and so the Pubs lost on that rules challenge. So the only take away I can get from that court case is that the Origination Clause can be violated as long as the Senate can violate their own rules by adding revenue-generating amendments to non-revenue bills. BTW this would be a valid legal reasoning under the _Ballin_ precedent. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 2, 2018, 2:55pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/49 "2018-01-02T14:55:49Z")
> [@Iggy](#): > > And yet the circuit court took the time to add in their opinion on the Origination Clause. Go figure as to why. And the Appeals Court denied en banc and SCOTUS denied cert. > > So the opinion stands. Sure. But the circuit court’s opinion as to the origination clause was limited to the facts before it. It didn’t “kill” the Origination Clause at all, but merely applied longstanding precedent. > [@](#): > > Where, as here, the Supreme Court has concluded that a provision’s revenue-raising function is incidental to its primary purpose, see NFIB, 132 S.Ct. at 2596, the Origination Clause does not apply. ---
**Author:** ![nelliebly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nelliebly/32/5422_2.png) [@nelliebly](https://boards.straightdope.com/u/nelliebly)\ **Post date:** [January 3, 2018, 7:27am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/50 "2018-01-03T07:27:44Z")
> [@Saint\_Cad](#): > > Technically the Corwin Amendment could still be ratified and it would be quite interesting with what SCOTUS would consider “domestic institutions” and “persons held to labor or service” so as not to overturn the 13th Amendment. Technically, any failed amendment could be reintroduced and passed, including such wild prospects as the 1828 proposed amendment to outlaw dueling and the 1860 proposed amendment to eliminate the presidency. Neither is more unreasonable than the idea that two-thirds of Congress and three-fourths of the states would vote in favor of an amendment whose sole aim was to reassure Southerners that slavery wouldn’t be abolished. An amendment can’t prohibit the ratification of future amendments; IIRC, white Southerners back in 1861 rejected this amendment for that very reason. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 3, 2018, 12:44pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/51 "2018-01-03T12:44:13Z")
> [@Blue\_Blistering\_Barnacle](#): > > I mean, suppose I manage to get ratified 2 amendments. The first says the sky is blue. The second says the sky is not blue. What happens then? I believe the standard rule is that the more recently enacted law has precedence, assuming they are of equal authority. The principle is that there would have been awareness of what the earlier law said when the later law was enacted so its enactment functions as an implied repeal. As an example, consider the method by which we elect the Vice President. The Constitution outlines two methods. One part of the Constitution (Article II, Section 1, Clause 3) says that Electors cast a vote for a President and whoever gets the second highest number of votes becomes Vice President. Another part of the Constitution (the Twelfth Amendment) says that Electors cast two separate votes, one for each office, and the two people who get the highest totals are elected to the two offices. We of course use the second method. But the Twelfth Amendment doesn’t explicitly repeal Article II, Section 1, Clause 3; that text is still there. It just has precedence over that section because it was enacted later. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 3, 2018, 1:31pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/52 "2018-01-03T13:31:53Z")
> [@Saint\_Cad](#): > > But if it was not a revenue bill, then how could the Senate add amendments that were not germane (i.e. add taxes)? That is a violation of Senate Rules. > > The actual problem is that SCOTUS declared the Obamacare penalties to be taxes making them Constitutional, but now that runs afoul of the Origination Clause. If you’ll remember the Pubs objected to the penalties on that grounds and the Dem Senators said (and quite possibly believed) they were not taxes and so the Pubs lost on that rules challenge. > > So the only take away I can get from that court case is that the Origination Clause can be violated as long as the Senate can violate their own rules by adding revenue-generating amendments to non-revenue bills. BTW this would be a valid legal reasoning under the _Ballin_ precedent. It is not generally a violation of Senate rules to add non-germane amendments. In fact, Senate rules are FAVORABLE to adding non-germane amendments, except in a few important circumstances (e.g., after cloture has been invoked on a bill, preventing policy amendments to appropriation bills, and a few other specific circumstances). In fact, if there was a non-revenue policy bill on the Senate floor, a senator is perfectly free under most circumstances to offer a tax amendment to that bill, and nothing in the Senate rules prevents that. However, if that bill is so amended and passed, the House will automatically reject the bill due to the Origination Clause (see the blue slip issue mentioned previously). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 3, 2018, 4:48pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/53 "2018-01-03T16:48:53Z")
Which brings us to another issue: the fact that SCOTUS declines to enforce specific constitutional provisions does not render them meaningless. SCOTUS frequently defers to the other branches under the political question doctrine, but it doesn’t mean the underlying issues aren’t valid; it just means the court doesn’t think they are within its enforcement power. That’s the POTUS or Congress’ job. So you can look at the House as the agency in charge of enforcing the Origination Clause. > [@Saint\_Cad](#): > > But if it was not a revenue bill, then how could the Senate add amendments that were not germane (i.e. add taxes)? That is a violation of Senate Rules. > > The actual problem is that SCOTUS declared the Obamacare penalties to be taxes making them Constitutional, but now that runs afoul of the Origination Clause. If you’ll remember the Pubs objected to the penalties on that grounds and the Dem Senators said (and quite possibly believed) they were not taxes and so the Pubs lost on that rules challenge. > > So the only take away I can get from that court case is that the Origination Clause can be violated as long as the Senate can violate their own rules by adding revenue-generating amendments to non-revenue bills. BTW this would be a valid legal reasoning under the _Ballin_ precedent. Whether a bill is one designed “primarily to raise revenue” (bringing it within the Origination Clause) and whether it is within Congress’ taxing and spending powers are two totally different analyses. SCOTUS ruled that the PPACA was within the taxing power, not that it was a revenue bill. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 3, 2018, 9:18pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/54 "2018-01-03T21:18:25Z")
> [@Really\_Not\_All\_That\_Bright](#): > > [QUOTE=UltraVires] > > The Privileges or Immunities Clause of the 14th Amendment is all but toothless. As is the Guarantee Clause (see Luther v. Borden). [/QUOTE] It’s only toothless if you take the position that every clause in the Constitution empowers the courts to act. The Supreme Court’s position in Luther v. Borden was that the Guarantee Clause does not create a justiciable right; rather, it confers a power on the Congress to protect the republican nature of state governments. > [@Saint\_Cad](#): > > That was killed when SCOTUS punted on whether or not a few people in a section of Virginia could stage a coup against the legally elected representatives of that sovereign state. Those would be the legally elected representatives who had declared their disloyalty to the Union and the Constitution, and were busy levying war against the Union. The federal government responded to their actions by supporting the loyalists in creating the new state of West Virginia. That entire episode illustrates why the Guarantee Clause is a political matter, not a judicial one. It was up to the federal Congress and the President to determine how best to ensure a republican government in the area of Virginia that remained loyal to the Union, not the courts. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [January 4, 2018, 12:53am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/55 "2018-01-04T00:53:59Z")
The 10th Amendment has sure been shot to hell. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 4, 2018, 1:03am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/56 "2018-01-04T01:03:52Z")
The Third Amendment is as unassailed today as it has ever been. No forced troop quartering for us! ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [January 6, 2018, 12:37am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/57 "2018-01-06T00:37:04Z")
> [@ElvisL1ves](#): > > The Third Amendment is as unassailed today as it has ever been. No forced troop quartering for us! It always disappoints me though to see WWII movies where US soldiers are taking over some nice old British person’s home. I can understand doing it in Germany, because we were basically repurposing enemy buildings. I guess the Brits did have it coming, 1776 and all. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 6, 2018, 8:39am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/58 "2018-01-06T08:39:34Z")
> [@nelliebly](#): > > Technically, any failed amendment could be reintroduced and passed, including such wild prospects as the 1828 proposed amendment to outlaw dueling and the 1860 proposed amendment to eliminate the presidency. Neither is more unreasonable than the idea that two-thirds of Congress and three-fourths of the states would vote in favor of an amendment whose sole aim was to reassure Southerners that slavery wouldn’t be abolished. An amendment can’t prohibit the ratification of future amendments; IIRC, white Southerners back in 1861 rejected this amendment for that very reason. Ummm … the Corwin Amendment didn’t fail. It is still active and had already passed the Congressional hurdle and has been ratified by 5 states. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 6, 2018, 8:44am UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/59 "2018-01-06T08:44:24Z")
> [@Northern\_Piper](#): > > Those would be the legally elected representatives who had declared their disloyalty to the Union and the Constitution, and were busy levying war against the Union. The federal government responded to their actions by supporting the loyalists in creating the new state of West Virginia. > > That entire episode illustrates why the Guarantee Clause is a political matter, not a judicial one. It was up to the federal Congress and the President to determine how best to ensure a republican government in the area of Virginia that remained loyal to the Union, not the courts. But in reality the 2nd Wheeling Convention and the Restored Government of Virginia were NOT Republican but rather a coup representing the western section of the Commonwealth. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 6, 2018, 1:30pm UTC](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443/60 "2018-01-06T13:30:24Z")
> [@DrCube](#): > > It always disappoints me though to see WWII movies where US soldiers are taking over some nice old British person’s home. Weren’t those always rentals? But I can understand the home owners feeling under pressure to agree to do it, things being what they were. [Previous page](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443.md?page=2) [Next page](https://boards.straightdope.com/t/which-constitutional-laws-can-be-proven-to-have-been-irretrievably-weakened-or-neutralized/805443.md?page=4)