Isabella Carter
The concept of an unconstitutional constitutional amendment has existed since at least the 1890s, and it is based on the idea that even a properly passed and ratified amendment can be deemed unconstitutional on substantive grounds. This doctrine has been adopted by various courts and legal scholars worldwide, and while it typically applies to amendments, some have proposed applying it to original constitutional parts. The Supreme Court's power to review amendments is generally limited to determining whether the amendment was lawfully adopted, and it cannot block a constitutional amendment. However, there have been instances where joint resolutions have been ruled unconstitutional, and courts have challenged and struck down attempts to amend constitutions.
| Characteristics | Values |
|---|---|
| Can a constitutional amendment be challenged before it's passed? | No, there is no mechanism to sue to stop an amendment other than it not getting enough votes. |
| Who can challenge a constitutional amendment? | The non-approving house has standing to challenge if only one of the two houses approves an amendment. |
| Basis of challenge | Technical issues such as only one of the two houses approving an amendment. |
| Can the Supreme Court block a constitutional amendment? | No, but the Supreme Court can determine if a constitutional amendment is unconstitutional. |
| Can a constitutional amendment be unconstitutional? | Yes, a properly passed and ratified constitutional amendment can be unconstitutional if it conflicts with a constitutional norm, value, and/or principle. |
| Who decides if a constitutional amendment is unconstitutional? | The Council of the Grand Justices (Constitutional Court) in Taiwan ROC, the Supreme Courts of Germany, Honduras, India, Italy, and the U.S. Supreme Court. |
| Can a constitutional amendment be challenged in Colombia? | Yes, any Colombian citizen can challenge the constitutionality of state action through the actio popularis. |
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What You'll Learn
Can a constitutional amendment be challenged before it's passed?
The process of amending the constitution is deliberately made to be difficult and time-consuming. The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. A proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by the legislatures of three-fourths of the states.
There is no mechanism to sue to stop an amendment other than it not getting enough votes. No one has standing to sue until it's been passed. However, there have been instances where joint resolutions have been ruled unconstitutional, such as in Perry v. United States, 294 U.S. 330. Thus, if there is a reason to challenge the joint resolution, it can be brought before the Supreme Court, which could potentially block the attempt to make it an amendment.
In the 1960s and 1970s, the Indian Supreme Court articulated the basic structure doctrine, which states that a constitutional amendment that violates the basic structure of the Indian Constitution should be declared unconstitutional. Similarly, the Federal Constitutional Court in Germany has jurisdiction over constitutional issues and the compliance of all governmental institutions with the constitution.
In the United States, there is a public debate about possibly repealing one of the Constitution's original 10 amendments, with retired Supreme Court Justice John Paul Stevens calling for a repeal of the Second Amendment. However, the odds of such an act happening are extremely long.
Amending the Constitution: Why and When?
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Can a Supreme Court block a constitutional amendment?
The Supreme Court's role is to interpret the Constitution and determine whether a law or action is constitutional or not. While the Supreme Court can overturn laws that contradict existing laws or the Constitution, it cannot block or overturn a constitutional amendment unless the correct procedure for ratification was not followed. The Supreme Court cannot interfere with the amendment process as it is explicitly stated in the Constitution that only Congress and the states can amend the Constitution.
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s, with former Michigan Supreme Court Chief Justice Thomas M. Cooley embracing the idea in 1893. Cooley argued that amendments "cannot be revolutionary; they must be harmonious with the body of the instrument". For example, an amendment that establishes a monarchy or aristocracy would be considered a revolution and would require a new constitution.
In some countries, courts do have the authority to review and strike down constitutional amendments. For instance, in Germany, the Federal Constitutional Court has jurisdiction over constitutional issues and can review both ordinary laws and constitutional amendments to ensure they comply with the Basic Law for the Federal Republic of Germany. Similarly, in Italy, the Constitutional Court decides on the constitutionality of laws and amendments, with its rulings being final and not subject to appeal.
In the United States, no amendment to the Constitution has ever been ruled unconstitutional by a court. The US Constitution sets high standards for amendments but places few limits on the content of amendments. While some legal scholars support the possibility of unconstitutional amendments, it is important to note that the Supreme Court's role is limited to interpreting the Constitution and determining the constitutionality of laws and actions.
Amending the Constitution: What Vote Is Required?
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Can a constitutional amendment be challenged on technical grounds?
The concept of an unconstitutional constitutional amendment has existed since at least the 1890s. The idea is that even a properly passed and ratified amendment can be unconstitutional on substantive grounds, such as if it conflicts with a constitutional norm, value, or principle. For example, an amendment that enshrines white supremacy would conflict with the constitutional value of equality.
However, the ability and willingness of the Supreme Court of the United States to overturn any constitutional amendment are questionable. The US Constitution is codified, and Article V allows all amendments except for depriving a state of its equal suffrage in the Senate without its consent. Amendments to the Constitution are extremely rare, and no amendment has ever been ruled unconstitutional by a court. The Constitution is the supreme law of the land, and there are no restrictions on the substance of amendments.
While the US Supreme Court has never overturned a constitutional amendment, courts in other countries have. For example, in Minerva Mills Ltd. v. Union of India, the Supreme Court of India struck down an amendment that established unlimited amendment powers and prohibited judicial review of amendments.
In the United States, it appears that the only way to challenge a constitutional amendment is on procedural grounds, such as if only one of the two houses approved an amendment by a two-thirds majority. However, if the issue is simply the topic of the amendment, there are no grounds for a challenge.
Amendments: Who Proposed Changes to the Constitution?
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Can a constitutional amendment be challenged if it's passed?
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s, when it was embraced by former Michigan Supreme Court Chief Justice Thomas M. Cooley. He argued that amendments must be "harmonious with the body of the instrument" and that an amendment that fundamentally changes the nature of the constitution would require the creation and adoption of a new constitution.
In the United States, the Supreme Court's justiciable decisions about a Constitutional Amendment are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the U.S. Constitution. For example, the Supreme Court could determine that a constitutional amendment is unconstitutional if it conflicts with some constitutional norm, value, or principle. However, there is no mechanism to sue to stop an amendment other than it not getting enough votes, and no one has standing to sue until it has been passed.
In other countries, the courts have also challenged the legitimacy and legality of constitutional amendments and struck down formal changes to the constitutional text. For example, in Taiwan, the Council of Grand Justices (Constitutional Court) declared a Constitutional Amendment unconstitutional and struck it down, setting a precedent for court review of constitutional amendments.
In conclusion, while it is possible to challenge a constitutional amendment on procedural or substantive grounds, the range of things that can be challenged is limited, and the specific mechanisms for doing so vary depending on the country's legal system.
Amendments: Private Citizen Actions and Their Limits
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Can a constitutional amendment be challenged in court?
The short answer is yes, constitutional amendments can be challenged in court. However, the power to challenge such amendments varies across different jurisdictions and is dependent on a variety of factors.
In the United States, the Supreme Court's justiciable decisions about a Constitutional Amendment are generally limited to determining whether the amendment was lawfully adopted pursuant to Article V. There is no mechanism to sue to stop an amendment other than it not getting enough votes. No one has standing to sue until it has been passed. However, if only one of the two houses approves an amendment by a two-thirds majority, and it is sent to the states, the non-approving house would have standing to challenge it.
In Taiwan, the Council of the Grand Justices (Constitutional Court) has set a precedent for court review of constitutional amendments. In Interpretation No. 499, the Council declared a Constitutional Amendment unconstitutional and struck it down.
In Colombia, the legislature introduced a series of changes to the framework of judicial review, including giving the SCC powers of abstract review of legislation. This allowed any Colombian citizen to challenge the constitutionality of state action.
In Germany, Honduras, India, and Italy, the Supreme Courts have asserted the authority to determine whether a constitutional amendment is unconstitutional.
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. It is based on the idea that even a properly passed and ratified constitutional amendment can be unconstitutional on substantive grounds, such as if it conflicts with a constitutional norm, value, or principle. For example, an amendment that seeks to convert a democratic republican government into an aristocracy or monarchy would be considered a revolution and would require the creation of a new constitution. Similarly, an amendment that transforms a constitution into some entity other than a constitution, such as by eliminating the rule of law, would be considered unconstitutional.
Approval Needed for Constitutional Amendments
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Frequently asked questions
Yes, constitutional amendments can be challenged in the US on the basis of the amendment process not being followed. However, the Supreme Court cannot block or overturn an amendment on the basis of its content.
No one has standing to sue until an amendment is passed. However, the Supreme Court could potentially block an amendment before it is passed if there is an issue with the amendment process.
The basis for challenging a constitutional amendment is that it was not properly passed or ratified, or that it is "unconstitutional" on substantive grounds, such as conflicting with a constitutional norm, value, or principle.
The 'unconstitutional constitutional amendment' doctrine holds that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. This doctrine has been adopted by various courts and legal scholars worldwide.
Yes, constitutional amendments can be challenged in other countries as well. For example, in Colombia, any citizen can challenge the constitutionality of state action, including constitutional amendments. The Supreme Courts of Germany, Honduras, India, and Italy have also asserted the authority to review and strike down amendments.
