Jonah Patel
The concept of an unconstitutional constitutional amendment has been around since at least the 1890s, with some arguing that an amendment that transforms the constitution into something unrecognizable or fundamentally different would be unconstitutional. This idea has been embraced by various courts and legal scholars worldwide, including in the US, where the Supreme Court has asserted its authority to determine the constitutionality of amendments. However, the Supreme Court's justiciable decisions are generally limited to determining whether the amendment was lawfully adopted pursuant to Article V of the US Constitution. The Court's power of judicial review allows it to declare acts in violation of the Constitution, even if this power is not explicitly mentioned in the Constitution itself. While the US Supreme Court can determine that a constitutional amendment is unconstitutional, this power is narrowly defined and exercised cautiously.
| Characteristics | Values |
|---|---|
| Courts with the authority to determine constitutionality of amendments | Supreme Courts of Germany, Honduras, India, Italy, and the US |
| Basis for US Supreme Court determination | Whether the amendment was lawfully adopted pursuant to Article V of the US Constitution |
| Basis for determination in other countries | Conflict with a constitutional or extra-constitutional norm, value, and/or principle |
| Courts without the authority to determine constitutionality of amendments | Finland |
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What You'll Learn
US Supreme Court's decisions about amendments
The US Supreme Court's decisions about amendments are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the US Constitution. In an opinion by Chief Justice Hughes, the Court held that while the Kansas legislators had the standing to sue, two of the plaintiffs' claims raised political questions that only Congress could resolve.
The US Supreme Court has also ruled on the constitutionality of amendments. For example, in Brown v. Board of Education (1954), the Court reversed its previous decision in Plessy v. Ferguson (1896), declaring that "separate schools are inherently unequal" and sanctioning segregation by upholding the doctrine of "separate but equal". This demonstrates the Court's interpretation and application of the 14th Amendment's Due Process Clause.
In another case, Hazelwood East High School vs. Kuhlmeier (1988), the Court ruled that school administrators could edit materials produced by students if they conflicted with school values, despite students' First Amendment right to freedom of speech.
The Supreme Court has also weighed in on the interpretation of the Sixth Amendment, ruling unanimously that individuals charged with a felony who are unable to pay for a lawyer must be guaranteed free legal assistance. This affirmed the Sixth Amendment right to assistance of counsel in criminal state trials.
In addition, the Court has addressed the Fourth Amendment, deciding that random drug tests of student athletes do not violate the prohibition of unreasonable searches and seizures. This decision has had broader implications, with some schools extending drug testing requirements to all students participating in extracurricular activities.
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Amendments conflicting with constitutional values
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. An amendment may be deemed "unconstitutional" if it conflicts with constitutional values, norms, or principles. For example, an amendment that enshrines white supremacy would conflict with the commonly cited constitutional value of equality.
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. However, the U.S. Supreme Court could determine that a constitutional amendment is unconstitutional on narrow grounds. For instance, in the case of the Child Labor Amendment, the Court stated that the question of its ratification "should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment."
In other countries, courts have also asserted the authority to determine the constitutionality of amendments. 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. Similarly, the Supreme Courts of Germany, Honduras, India, and Italy have asserted such authority.
On the other hand, some countries have limited powers of judicial review over constitutional amendments. For instance, in Finland, the Parliament enjoys sovereignty, and its acts do not undergo judicial review. Similarly, the United Kingdom has a doctrine of parliamentary sovereignty, and its Supreme Court is limited in its powers of judicial review as it cannot overturn primary legislation made by Parliament.
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Amendments altering a constitution's identity
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. The idea is that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitution's norms, values, and principles. For instance, an amendment that eliminates the rule of law or drastically changes the form of government could be seen as "unconstitutional".
In the US, the Supreme Court's decisions about a Constitutional Amendment are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the Constitution. However, the US Supreme Court could determine that a constitutional amendment is unconstitutional on narrow grounds. For instance, in one case, the Court stated that the question of whether the Kansas legislature’s previous rejection of the Child Labor Amendment precluded its subsequent ratification "should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment."
In other countries, courts have also asserted the authority to determine the constitutionality of amendments. 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.
It's important to note that the process of amending a constitution varies across jurisdictions. In most cases, amendments take the form of revisions to the previous text, directly altering the existing document. However, in some cases, amendments may be appended to the end of the main text as special articles, leaving the original text intact but potentially taking precedence over it in the event of conflict.
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Judicial review powers of the Supreme Court
The Supreme Court is the highest court in the United States, and it serves as the court of last resort for those seeking justice. The Court's power of judicial review is a fundamental aspect of the US judicial system, ensuring that laws align with the principles set forth in the US Constitution. This power emerged from the historical context of common law, which emphasises uniformity in legal interpretations across jurisdictions.
Article III of the US Constitution establishes the federal judiciary and outlines the powers and duties of the Supreme Court. While Article III does not explicitly mention the power of judicial review, this authority was firmly established in the landmark case of Marbury v. Madison in 1803. In this case, Chief Justice John Marshall asserted the Court's role as the ultimate interpreter of the Constitution, stating that the Court must determine which rules govern when a law conflicts with the Constitution.
The Supreme Court's power of judicial review allows it to declare laws, actions, and state constitutional provisions as unconstitutional if they violate the US Constitution. This includes the power to review acts of Congress and determine whether they are unconstitutional. The Court's decisions can have significant implications for the rule of law and governance, influencing American law and inspiring similar judicial frameworks in other democracies.
While the Supreme Court's power of judicial review is essential, it is also controversial. The Court's decisions can spark political and social debates, particularly when they appear to contradict public sentiment or intervene in contentious political issues. Additionally, the Court's authority to declare laws unconstitutional is not explicitly mentioned in the Constitution, leading to ongoing debates about the scope and exercise of judicial review.
In summary, the Supreme Court's judicial review powers are significant in maintaining the balance of power between the branches of government and protecting civil rights and liberties. However, the exercise of these powers can also be controversial and spark debates about the role of the judiciary in interpreting and shaping the law.
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Supreme Court's jurisdiction over constitutional cases
The jurisdiction of the Supreme Court is established by Article III, Section II of the US Constitution. The Court has original jurisdiction (a case is tried before the Court) over certain cases, including suits between two or more states, cases involving ambassadors, and other public ministers. The Court has held that its original jurisdiction is self-executing and flows directly from the Constitution without requiring further action from Congress.
Article III, Section 2, Clause 2 of the Constitution defines the Supreme Court's jurisdiction, creating two types of jurisdiction for different categories of cases. Firstly, it grants the Court original jurisdiction over cases involving ambassadors, other public ministers, and consuls, as well as those in which a state is a party. Secondly, it provides the Court with appellate jurisdiction over all other cases subject to federal court jurisdiction, with certain exceptions and regulations set by Congress.
The Supreme Court's appellate jurisdiction allows it to hear cases on appeal involving constitutional and/or federal law. Examples include cases where the United States is a party, cases involving treaties, and admiralty cases involving ships on the high seas or navigable waterways. The Certiorari Act of 1925 gives the Court discretion in deciding whether to hear these cases.
While the Supreme Court has the authority to strike down state laws found to be unconstitutional, its jurisdiction over constitutional cases is limited when it comes to determining the constitutionality of amendments. In the United States, the Supreme Court's decisions about constitutional amendments typically centre on whether the amendment was lawfully adopted according to Article V. The Court has indicated that it can determine whether a constitutional amendment is unconstitutional, but only on narrow grounds.
In other countries, the Supreme Courts of Germany, Honduras, India, and Italy have asserted more authority in determining the constitutionality of amendments. For example, in Taiwan, the Council of Grand Justices (Constitutional Court) declared a Constitutional Amendment unconstitutional and set a precedent for court review of amendments.
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Frequently asked questions
Yes, courts can determine the constitutionality of amendments. For example, in Taiwan ROC, the Council of the Grand Justices (Constitutional Court) declared a Constitutional Amendment unconstitutional and struck it down.
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and ratified amendment can be unconstitutional on substantive grounds. For example, an amendment may conflict with a constitutional norm, value, or principle.
The US Supreme Court's decisions about a US Constitutional Amendment are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the US Constitution. However, the US Supreme Court could determine that a constitutional amendment is unconstitutional on narrow grounds.
