Supreme Court's Power: Can It Undo Amendments?

The US Constitution has been amended 27 times and is difficult to change. State constitutions, on the other hand, are amended regularly, with Alabama, Louisiana, South Carolina, Texas, and California amending their constitutions three to four times per year on average. The process of amending the US Constitution is a valid one and it is explicitly stated in the Constitution that only Congress and the states can amend it. The Supreme Court cannot block or overturn it unless the ratification process is contentious or violates the federal constitution. The idea of an unconstitutional constitutional amendment has been proposed by legal scholars and courts in various countries, but it is unclear if and when the US Supreme Court would embrace this doctrine.

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The Supreme Court cannot undo constitutional amendments

The Supreme Court of the United States (SCOTUS) cannot undo constitutional amendments. The U.S. Constitution is difficult to change and has only been amended 27 times. Amending the Constitution is done by Congress and the States, and it must pass two-thirds of each house of Congress before being ratified by three-quarters of the states. Neither SCOTUS nor the President has any part in passing and ratifying it.

Once an amendment is ratified, the only way to overrule it is with another Constitutional Amendment. For example, the 18th Amendment, which established Prohibition, was later repealed by the 21st Amendment. The odds of repealing a Constitutional Amendment are extremely long, and talk of repealing the 17th, 16th, and 22nd Amendments has not come close to fruition.

While some legal scholars support the possibility of unconstitutional amendments, it is not the role of SCOTUS to block or overturn them. SCOTUS can only act on cases that have been brought to them, and they cannot issue "advisory opinions" about possible future laws or events. The Constitution gives federal courts jurisdiction over "cases" and "controversies," which has been interpreted to mean that courts can only hear legal disputes about things that are actually happening.

In conclusion, while there may be debate about the possibility of unconstitutional amendments, the power to pass, ratify, and repeal Constitutional Amendments lies with Congress and the States, not with the Supreme Court.

Congress and the states can amend the constitution

The US Constitution is codified, meaning it sets high standards for amendments but places few limits on the content of amendments. Amending the US Constitution is done by Congress and the States, as outlined in Article V of the Constitution. This article sets out the procedures for amending the Constitution.

For an amendment to be proposed, two-thirds of both Houses of Congress must deem it necessary. Alternatively, two-thirds of the state legislatures can apply for Congress to call a convention for proposing amendments. In either case, the amendment must then be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. The mode of ratification is proposed by Congress.

The Supreme Court cannot block or overturn a constitutional amendment unless the ratification process is contentious, such as in the case of the Equal Rights Amendment (ERA). The Supreme Court also cannot interfere if an amendment to a state constitution violates the federal constitution. For example, several states prohibited gay marriage in their constitutions, but this was overruled by the Obergefell decision, which legalised gay marriage nationwide.

There is debate among legal scholars about the possibility of unconstitutional amendments. Some scholars, such as Chemerinsky and Leon Friedman, argue that a part of the US Constitution can be unconstitutional if it conflicts with a subsequent constitutional amendment. However, others, such as Michael Dorf, express skepticism that the Supreme Court would embrace this doctrine anytime soon.

Amendments require two-thirds of the House and Senate

The process of amending the US Constitution is outlined in Article V of the Constitution. It requires a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. This is the first method, and it has been the only method used thus far. The second method, which has never been used, involves Congress calling a convention for proposing amendments upon the request of two-thirds of the state legislatures.

The process begins with Congress proposing an amendment in the form of a joint resolution. The President does not have a constitutional role in this process, so the joint resolution does not require their signature or approval. Instead, the original document is sent directly to the National Archives and Records Administration (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR then adds legislative history notes to the joint resolution and publishes it in slip law format.

The OFR also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and other relevant information. The proposed amendment is then submitted to the states for their consideration. Governors formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified.

For an amendment to be ratified, it must be approved by three-quarters of the states (38 out of 50). Once the OFR verifies that the required number of authenticated ratification documents has been received, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process has been completed.

It is important to note that the Supreme Court cannot block or overturn a Constitutional amendment. The Constitution explicitly states that only Congress and the states have the power to amend it. The Supreme Court can only act on cases that have been brought to them, and they cannot issue "advisory opinions" about potential future laws or events.

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Amendments are difficult to repeal

The United States Constitution was written "to endure for ages to come". To ensure it would last, the framers made the process of amending the document a difficult task. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments adopted in 1791 as the Bill of Rights.

The process of repealing an amendment is just as challenging. Only one amendment, the 18th Amendment that established Prohibition, was later repealed by the states. The 21st Amendment, which repealed the 18th Amendment, was passed by Congress in February 1933 and ratified in December of that year.

In recent years, three other amendments have been the subject of repeal discussions: the 17th Amendment (the direct election of Senators), the 16th Amendment (the federal income tax), and the 22nd Amendment (presidential term limits). However, none of these discussions have come close to fruition. The Constitution's Article V requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures.

Retired Supreme Court Justice John Paul Stevens has also called for the repeal of the Second Amendment, which guarantees "the right of the people to keep and bear Arms". While Stevens' op-ed in the New York Times sparked a public debate about the possibility of repealing the Second Amendment, the odds of such an act happening are extremely long. According to National Weather Service data, the chance of any constitutional amendment being repealed is roughly the same as a person living to 80 years old being struck by lightning during their lifetime.

Amendments can be unconstitutional

The concept of an unconstitutional constitutional amendment is based on the idea that even a properly passed and ratified amendment can be deemed unconstitutional on substantive grounds. This means that an amendment may conflict with a constitutional or extra-constitutional norm, value, or principle. For instance, if an amendment were to violate the one person, one vote principle, it could be considered unconstitutional. This concept has been explored by legal scholars and courts in various countries, including the United States, Israel, and Taiwan.

In the United States, the Supreme Court (SCOTUS) cannot block or overturn a constitutional amendment unless the ratification process is contentious. The Constitution explicitly states that only Congress and the states have the power to amend it. However, there is a possibility of SCOTUS utilising the unconstitutional constitutional amendment doctrine to strike down an unequal apportionment in the Senate, as argued by law professor Michael Dorf. Nevertheless, Dorf expresses skepticism that the Court would embrace this doctrine anytime soon.

The idea of unconstitutional amendments is not new and has been around since at least the 1890s. Former Michigan Supreme Court Chief Justice Thomas M. Cooley embraced this concept in 1893, arguing that amendments must be harmonious with the existing constitution. He gave the example of an amendment converting a democratic government into a monarchy, which he believed would require a new constitution altogether. Similarly, US law professor Arthur Machen in 1910 questioned the constitutionality of the Fifteenth Amendment.

While the US Constitution sets high standards for amendments, it places few limits on their content. This means that theoretically, an amendment could pass through the proper legislative process and become part of the Constitution, even if it conflicts with certain norms or values. However, the chances of repealing an amendment are extremely slim, and there has only been one instance in US history where the states repealed an amendment, which was the 18th Amendment establishing Prohibition.

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