Eleanor Finch
The question of whether a constitutional amendment can be unconstitutional has been a topic of legal debate and scholarly interest. While the process of amending a constitution may vary across different countries, the discussion revolves around the authority of courts, particularly the Supreme Court, to invalidate or declare an amendment unconstitutional. This involves examining the substantive unconstitutionality of amendments, their compliance with procedural requirements, and the interpretation of constitutional norms and principles. The U.S. Constitution, for example, imposes specific procedural requirements outlined in Article V, and an amendment's validity may be questioned if it infringes on a state's equal voting rights without its consent. The role of judicial review and the power dynamics between the judiciary and other political departments further complicate this complex legal question.
| Characteristics | Values |
|---|---|
| Courts with the authority to declare an amendment unconstitutional | U.S., Germany, Honduras, India, Italy, Bangladesh, Belize, Peru, Colombia, Taiwan |
| Basis for declaring an amendment unconstitutional | Procedural infirmities, inconsistency with underlying principles or the design of the constitution, or substantive unconstitutionality |
| U.S. Supreme Court's scope of authority | Limited to determining whether the amendment was lawfully adopted pursuant to Article V of the U.S. Constitution |
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What You'll Learn
The US Supreme Court's power to deem an amendment unconstitutional
The US Supreme Court does not have the explicit power to deem an amendment unconstitutional. The US Constitution states that Congress and the states are the bodies that can amend the Constitution. However, some legal scholars and theorists have argued that an amendment could be deemed unconstitutional if it conflicts with an unchangeable provision or goes against the basic structure of the Constitution.
The US Constitution sets high standards for amendments but places few limits on their content. As a result, no amendment has ever been ruled unconstitutional by a US court. Nevertheless, the idea of an "unconstitutional constitutional amendment" has been around since at least the 1890s and has been embraced by some legal professionals.
An amendment could be deemed unconstitutional if it goes against an unchangeable provision in the Constitution, such as depriving a state of equal representation in the Senate without its consent. This is referred to as an amendment's substantive unconstitutionality. Additionally, some theorists argue that an amendment could be unconstitutional if it changes the Constitution in a way that breaks it. This is known as the “unconstitutional constitutional amendment” legal theory, which has been adopted by various courts and scholars worldwide.
In other countries, such as Germany, Italy, and India, the Supreme Court or a similar body has the power to review and strike down amendments that are deemed unconstitutional. For example, in Germany, the Federal Constitutional Court reviews both ordinary laws and constitutional amendments to ensure they comply with the core principles of the Basic Law. In Italy, the Constitutional Court decides on the constitutionality of laws and amendments regarding inviolable human rights. Similarly, the Indian Supreme Court articulated the basic structure doctrine, stating that an amendment violating the basic structure of the Constitution should be declared unconstitutional.
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Procedural requirements and limitations
The procedural requirements and limitations of constitutional amendments are critical to their validity and enforcement. While the specific procedures may vary across different jurisdictions, some common principles and challenges can be identified. Firstly, the process of amending a constitution typically involves specific requirements, such as the need for supermajority support in legislative bodies, as exemplified by the US Constitution's mandate for a two-thirds majority in Congress. Failure to meet these procedural thresholds would render an amendment invalid.
Secondly, there is a critical distinction between procedural and substantive compliance with constitutional norms. While an amendment may satisfy the procedural conditions, its substance may still be deemed unconstitutional if it conflicts with established constitutional principles. For instance, an amendment that deprives a state of its equal voting rights in the Senate without its consent would be deemed substantively unconstitutional, as it violates the explicit protections of Article V of the US Constitution.
The role of judicial interpretation in assessing the constitutionality of amendments is a contentious issue. While the US Supreme Court generally defers to Congress on procedural matters, it may assert its authority to determine whether an amendment was lawfully adopted per Article V. This power to invalidate an amendment based on judicial interpretation of underlying constitutional principles has been exercised by courts worldwide, from Germany and India to Bangladesh and Belize.
The expansion of judicial power in this context reflects the phenomenon of the ""judicialization of mega-politics," where courts increasingly adjudicate highly political questions. This development has sparked scholarly interest in understanding the implications for democratic governance and the potential limitations on judicial authority in interpreting constitutional amendments.
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State consent and equal suffrage
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 amendment can be unconstitutional if it conflicts with a constitutional or extra-constitutional norm, value, or principle. For example, an amendment that abolishes political speech would be unconstitutional as it would conflict with the First Amendment and render the rest of the Constitution meaningless.
The United States Constitution has a specific process for amending it, outlined in Article V. This article sets out that Congress can propose amendments, which must then be ratified by three-quarters of the states. Alternatively, two-thirds of state legislatures can apply to call a convention to propose amendments, bypassing Congress. Article V also makes certain subjects unamendable. One of these is state consent and equal suffrage, stating that "no State, without its consent, shall be deprived of its equal Suffrage in the Senate." This means that every state will have the same number of senators and cannot be deprived of this representation without their consent. This ensures that a small minority of the country can prevent an amendment from being added to the Constitution and protects states' representation in the Senate.
The idea of state consent and equal suffrage in the Senate is a fundamental principle of the US Constitution, ensuring that all states have equal representation and a say in the legislative process. By including this provision in Article V, the Founding Fathers recognized the importance of protecting each state's rights and ensuring their consent in any changes to the Constitution. This provision has been interpreted to mean that each state will have the same number of senators, regardless of their population or size. This ensures that smaller states are not overshadowed by larger ones and that the Senate represents a balance between the interests of individual states and the overall population.
The protection of state consent and equal suffrage in the Senate has been a consistent feature of the US Constitution and has not been amended or changed since its inception. This provision has been respected and upheld by Congress and the states, recognizing the importance of maintaining equal representation for all states. Any attempt to deprive a state of its equal suffrage without its consent would be a significant breach of the Constitution and a violation of the rights of that state and its citizens.
While the specific provision of state consent and equal suffrage in the Senate has not been directly challenged or amended, the interpretation and application of this principle have evolved over time. For example, the expansion of voting rights and the end of discriminatory practices have enhanced the equal suffrage principle by ensuring that all citizens within a state have an equal opportunity to participate in the democratic process and elect their senators.
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Judicial review and precedent
The power of Judicial Review in the United States is derived from Article III of the U.S. Constitution, which outlines the powers and duties of the judicial branch. While Article III does not explicitly mention the power of Judicial Review, the ability of the Supreme Court to review and determine the constitutionality of laws and actions of the other two branches of government is established through this article.
The landmark case of Marbury v. Madison in 1803 is often cited as the origin of Judicial Review. In this case, Chief Justice Marshall articulated the role of the Judicial Department in interpreting the law and resolving conflicts between laws, including those that may contradict the Constitution. The power of Judicial Review allows the Supreme Court to declare a Legislative or Executive act unconstitutional, even if it does not explicitly appear in the text of the Constitution.
The Supreme Court, as the highest court in the land, serves as the final arbiter of justice and plays a crucial role in ensuring that all branches of government respect their limits. Through Judicial Review, the Court can strike down laws that violate the Constitution, protecting civil rights and liberties, and setting limits on democratic government to prevent the majority from passing laws that harm or disadvantage minorities.
Additionally, the Supreme Court has appellate jurisdiction, allowing it to hear cases on appeal involving constitutional and federal law, treaties, and admiralty cases. The Certiorari Act of 1925 grants the Court discretion in deciding which cases to review. While the Court receives thousands of petitions for a writ of certiorari annually, it agrees to hear only a small fraction of them.
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Amendments inconsistent with the First Amendment
The First Amendment to the United States Constitution protects various civil liberties, including freedom of religion, speech, and assembly. While it is generally understood that constitutional amendments are inherently constitutional, some argue that there may be cases of substantive unconstitutionality within amendments.
The First Amendment's protections are not absolute and have been interpreted and applied in various ways over time. For example, the Supreme Court has ruled that schools can restrict student speech that is inconsistent with their educational mission or promotes illegal drug use.
The Establishment Clause and the Free Exercise Clause of the First Amendment address the "two big arenas of religion in constitutional law." The Establishment Clause prohibits the government from endorsing, promoting, or becoming too involved with religion. On the other hand, the Free Exercise Clause protects Americans' rights to practice their faith without governmental interference. These clauses sometimes compete with each other and have been the subject of contentious litigation.
While the First Amendment guarantees freedom of speech, it is not absolute. Over time, the Supreme Court has ruled on several cases that interpret and apply this right, such as in Bethel School District v. Fraser (1986) and Hazelwood v. Kuhlmeier (1988), where the Court ruled that schools could punish students for certain types of speech.
In conclusion, while the First Amendment provides robust protections for civil liberties, these rights are not without limitations. The interpretation and application of these freedoms have evolved through Supreme Court rulings and litigation, shaping the understanding of what is considered consistent with the First Amendment.
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Frequently asked questions
Yes, a constitutional amendment can be deemed unconstitutional. For example, in the US, if an amendment is not supported by two-thirds of Congress or is not ratified by three-quarters of the states, it is invalid.
An amendment might be deemed unconstitutional if it is inconsistent with the underlying principles of the Constitution. For example, it could violate democratic principles or voting rights.
In the US, the Supreme Court has the power to determine if an amendment is unconstitutional. However, this power is generally limited to interpreting whether the amendment was lawfully adopted under Article V of the US Constitution.
Yes, constitutional courts in several countries, including Germany, Honduras, India, and Italy, have asserted the power to invalidate amendments on the basis that they are inconsistent with constitutional norms.
