Amendments: Can They Challenge The Constitution?

The process of amending the United States Constitution is deliberately difficult and time-consuming. The Constitution has been amended only 27 times since it was drafted in 1787, and there are strict procedures in place for proposing and ratifying amendments. Amendments can be proposed by Congress with 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 state legislatures. Once proposed, an amendment must be ratified by three-fourths of state legislatures or conventions. While the Supreme Court interprets the Constitution, it cannot block or overrule a validly passed amendment. However, there is debate about whether the Supreme Court could intervene if an amendment contradicted existing laws or certain unamendable subjects.

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The Supreme Court cannot block an amendment

The Supreme Court's role is to interpret the Constitution, not to overwrite it. The Court does not have the authority to block an amendment that has been passed by Congress and ratified by the states. The Court can only evaluate whether the amendment was passed based on the criteria for passing an amendment and whether it conferred the authority to Congress to pass such a law.

The Supreme Court cannot issue advisory opinions on potential future laws or events. This means that if an amendment has not been enacted, the Court cannot review it. The Court can only hear legal disputes about existing laws or events.

While the concept of an unconstitutional amendment exists, no amendment to the US Constitution has ever been ruled unconstitutional by a court. Some legal scholars argue that an amendment that conflicts with a constitutional norm, value, or principle could be considered unconstitutional. However, this would be a substantive rather than procedural issue, and it is not explicitly addressed in the Constitution.

In other countries, such as Germany, Italy, and India, courts have played a role in reviewing and striking down constitutional amendments or parts of their original constitutions. These countries have different legal systems and frameworks than the US, and their courts have specific jurisdiction over constitutional issues.

Amendments require a two-thirds majority vote

Amending the United States Constitution is a challenging and time-consuming process. The framers of the Constitution made it difficult to amend the document to ensure its longevity. Since the Constitution was drafted in 1787, it has been amended only 27 times, with the first 10 amendments being adopted four years later as the Bill of Rights.

To propose an amendment, Congress must pass it with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only method that has been used thus far to propose amendments. The two-thirds vote requirement is the most common supermajority requirement in the US Constitution. It is intended to protect the rights of minorities and ensure that any changes to the Constitution have a broad consensus.

After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The proposed amendment is then submitted to the States for their consideration.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the States (38 out of 50 States). When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action. The Director of the Federal Register examines the ratification documents for legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them.

In summary, while it is possible to challenge the Constitution with an amendment, the process is deliberately challenging. Amendments require a two-thirds majority vote in both the House of Representatives and the Senate to be proposed, followed by ratification by three-fourths of the States. This ensures that any changes to the Constitution reflect the interests and values of the majority of Americans.

The President has no role in the process

The President does not have a constitutional role in the amendment process. The joint resolution proposing an amendment does not require the President's signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes, publishes the resolution in slip law format, and assembles an information package for the states.

Historically, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that became the Bill of Rights, to the states for ratification after Congress approved them. Additionally, in recent history, Presidents have participated in the ceremonial signing of certifications for amendments as witnesses, such as President Johnson for the 24th and 25th Amendments and President Nixon for the 26th Amendment.

However, the Supreme Court has affirmed that the submission of a constitutional amendment does not require the action of the President. In the 1920 case of Hawke v. Smith, the Court characterized its earlier decision in Hollingsworth v. Virginia as settling that Presidential approval is unnecessary for a proposed amendment. Furthermore, the Court's opinion in Hollingsworth v. Virginia determined that the Eleventh Amendment was "constitutionally adopted," rejecting the argument that it was invalid because it had not been submitted to the President for approval or veto.

Therefore, while the President may have a ceremonial or ministerial role in certain aspects of the amendment process, they do not have a constitutional role, and their approval is not required for proposing or adopting amendments to the Constitution.

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Article V outlines the procedure

Article V of the United States Constitution outlines the procedure for amending the document. The process is intentionally difficult and time-consuming. Amending the Constitution requires a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention called for by two-thirds of state legislatures. This convention method has never been used.

Once proposed, an amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. However, the specific ratification process is not detailed in Article V or the relevant legal code. Instead, the Archivist and the Director of the Federal Register follow procedures established by the Secretary of State and the Administrator of General Services, who previously performed these duties.

Article V also includes provisions that prohibit certain subjects from being amended. Specifically, it states that no amendment made before 1808 can affect the first and fourth clauses of the ninth section of Article I. Additionally, no state can be deprived of its equal suffrage in the Senate without its consent.

While the Supreme Court's role is to interpret the Constitution, it cannot overwrite it. The Court can only act on cases brought before it and cannot block a Constitutional amendment. However, it could potentially challenge an amendment on technical grounds, such as if only one house of Congress approved it with a two-thirds vote.

Amendments can be repealed

The process of amending the United States Constitution is a difficult and time-consuming task. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, known as the Bill of Rights, which were ratified in 1789. The authority to amend the Constitution is derived from Article V, which establishes two methods for proposing amendments.

The first method, which has been used for all amendments so far, requires a two-thirds majority vote in both the House of Representatives and the Senate. The second method, which has never been used, involves two-thirds of the state legislatures calling for a Constitutional Convention to propose amendments. In both cases, the proposed amendment must be ratified by three-fourths of the states to become part of the Constitution.

While it is challenging to amend the Constitution, it is possible to repeal an amendment. Only one amendment has been repealed by the states so far: the 18th Amendment, which established Prohibition. In 1933, Congress passed the 21st Amendment, which included language permitting state conventions (instead of state legislatures) to vote on ratification due to concerns about influence from the temperance lobby. Utah became the 36th state to approve the amendment, not only repealing the broad prohibition on alcohol but also granting states the power to define alcohol laws within their borders.

There have been discussions about repealing other amendments, such as the 16th Amendment (federal income tax), the 17th Amendment (direct election of Senators), the 22nd Amendment (presidential term limits), and the Second Amendment (right to bear arms). However, these talks have not come close to fruition. The odds of repealing an amendment are extremely slim, comparable to a person living to 80 years old being struck by lightning, according to the National Weather Service data.

The process of repealing an amendment is similar to the process of amending the Constitution. It requires a proposed amendment to repeal the existing amendment, which must be passed by a two-thirds majority in both houses of Congress or through a Constitutional Convention called for by two-thirds of the states. The proposed repeal must then be ratified by three-fourths of the states to become effective.

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