Isabella Carter
The concept of an unconstitutional constitutional amendment has been around since at least the 1890s. An amendment is considered unconstitutional if it conflicts with a constitutional or extra-constitutional norm, value, or principle. While the Supreme Court interprets ambiguities or conflicts in constitutional amendments, it cannot overturn primary legislation made by the Parliament of the United Kingdom. In the United States, Congress can achieve similar goals to amending the Constitution by enacting statutes that extend constitutional principles.
| Characteristics | Values |
|---|---|
| Supreme Court rulings over constitutional amendments | The Supreme Court can strike down constitutional amendments in "extreme" circumstances, as seen in Israel in 2024 |
| Unconstitutional constitutional amendments | An amendment that goes against the basic structure of the constitution, such as fundamental rights or separation of powers |
| Supreme Court powers | Limited powers of judicial review in the UK, unable to overturn primary legislation made by Parliament |
| Congressional powers | Can achieve goals without amending the Constitution by enacting statutes that extend constitutional principles |
| Congressional reversal of Supreme Court rulings | Can be done by enacting new or revised statutes, but is a difficult task |
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What You'll Learn
Supreme Court's power to interpret ambiguities
The Supreme Court has the power to interpret ambiguities in statutes and resolve them by exercising independent legal judgment. This was demonstrated in the landmark decision of Loper Bright Enterprises v. Raimondo, where the Supreme Court overruled the Chevron doctrine, which had previously required courts to defer to administrative agencies' interpretations of the statutes they administer. The Chevron framework had been criticised for allowing agencies to change their positions as much as they liked, undermining the "rule of law" values that stare decisis exists to secure.
The Supreme Court's decision in Loper Bright clarified that it is the role of the courts to interpret ambiguous statutes and that they are not bound by administrative agencies' interpretations, even when those agencies have specialised experience. This ruling opened the door for courts to apply a new level of scrutiny to rules issued by federal agencies, such as the IRS, USDA, and EPA. The Court noted that while the interpretations and opinions of administrative agencies can provide guidance, the courts must ultimately confront statutory ambiguities and exercise their independent legal judgment to resolve them.
The power to interpret ambiguities is an important aspect of the Supreme Court's role in ensuring the constitutionality of laws and protecting democratic values. For example, in Israel, the Supreme Court used this power to strike down an amendment to the Basic Law that would have limited its own power to reject legislation contrary to the Basic Laws. The Court ruled that the amendment was "extreme" and would jeopardise Israel's democratic characteristics. Similarly, in Germany, the Federal Constitutional Court's jurisdiction is focused on ensuring that both ordinary laws and constitutional amendments passed by Parliament are compatible with the core principles of the Basic Law.
While the Supreme Court has the final say on interpreting ambiguities, it is important to note that the UK Supreme Court's powers are limited in this regard. The UK Supreme Court cannot overturn primary legislation made by Parliament, and any Act of Parliament can become part of the UK's constitutional sources without binding scrutiny due to the doctrine of parliamentary sovereignty. In contrast, the US Supreme Court has asserted its authority to interpret ambiguous statutes independently, demonstrating its crucial role in shaping the legal landscape and upholding constitutional principles.
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Supreme Court rulings and their constitutionality
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. The idea is that even a properly ratified constitutional amendment can be deemed unconstitutional if it conflicts with a fundamental norm, value, or principle. This doctrine has been adopted by various courts and legal scholars worldwide. For example, in Israel, the Supreme Court ruled in 2024 that it could reject amendments to Basic Laws in "extreme" circumstances, such as when the basic characteristics of a democratic country are jeopardized.
In the United States, the Supreme Court interprets the Constitution and can rule on the constitutionality of laws and executive actions. However, it cannot overturn the Constitution or its amendments. If an amendment is properly ratified, it becomes part of the Constitution and is, by definition, constitutional. The Supreme Court can interpret ambiguities or conflicts within the Constitution and its amendments, but it cannot abolish or overturn them.
While the Supreme Court cannot directly overturn constitutional amendments, its rulings can shape how those amendments are interpreted and applied. The court's interpretations of the Constitution and its amendments are incredibly powerful and can influence public policy and individual rights.
In some cases, Congress can achieve similar goals to amending the Constitution by enacting statutes that extend constitutional principles through its enumerated powers. For example, Congress can regulate commerce and attach conditions to money given to states, as well as enforce the Reconstruction Amendments that promote equality. Additionally, if the Supreme Court interprets a federal statute rather than the Constitution itself, Congress can enact a new or revised statute to correct the Court's interpretation.
The system granting the Supreme Court such power can be frustrating, especially given that the US Constitution was explicitly designed to be "counter-majoritarian" or counter-democratic in some ways. However, the Court's rulings are subject to judicial review, and its decisions can be challenged and potentially overturned by lower courts and then appellate courts before reaching the Supreme Court again.
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Congress's ability to overturn Supreme Court rulings
The US Supreme Court is the country's highest court and plays a critical role in all matters of federal law. However, it doesn't always have the final say, and Congress can sometimes overturn its rulings.
Congress's ability to check the court depends on whether the court is interpreting the Constitution or a federal statute. If the Supreme Court is interpreting the Constitution, its opinion is generally final. On the other hand, if the court is interpreting a federal statute, Congress has more flexibility to amend it.
To override the Supreme Court's interpretation of the Constitution, Congress must propose an amendment to the Constitution with a two-thirds majority vote in both houses, followed by ratification by three-quarters of the states. This is a challenging process and hasn't been achieved in over 30 years.
However, Congress can sometimes achieve similar goals without amending the Constitution. They can enact statutes that extend constitutional principles through their enumerated powers, such as the power to regulate commerce and attach conditions to funding provided to states.
For example, when the Supreme Court ruled that the Equal Protection Clause only prohibits discrimination by government entities and not private entities, Congress used its power to regulate commerce to extend non-discrimination protections to the private sector.
In summary, while the US Supreme Court plays a pivotal role in federal law, Congress has some ability to overturn its rulings, especially when it comes to interpreting federal statutes or extending constitutional principles through their enumerated powers.
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Constitutional amendments in common law countries
The process of amending a constitution varies across different common law countries. Some constitutions use entrenched clauses to restrict the types of amendments they may be subjected to. This is usually to protect the characteristics of the state, such as the form of government or the protection of human rights. For example, Article 79 (3) of the German Basic Law forbids modification of the federal nature of the country, or the abolition or alteration of human rights laws. Similarly, Article 139 of the Italian Constitution states that "the republican form cannot be subject to constitutional revision".
In some countries, the constitution can only be modified by a referendum. For example, the Irish Constitution can only be modified by a referendum following a proposal approved by the lower and upper houses of the Oireachtas, among citizens entitled to vote for the President. In contrast, the Parliament of Bulgaria can amend the Constitution for minor issues with a three-quarters majority, or two-thirds majority upon reintroduction in parliament after two months.
The United States' Constitution is often regarded as one of the most difficult constitutions to amend. However, this claim has been disputed. In contrast, the United Kingdom's constitution is not strictly codified, allowing for easy changes as no provisions are formally entrenched. The UK has a doctrine of parliamentary sovereignty, limiting the powers of the Supreme Court to review primary legislation made by Parliament.
The increase in constitutional amendments since the 1960s can be attributed to decolonisation, with many newly independent countries adopting written constitutions. Additionally, initial constitutions heavily influenced by European powers were locally tailored after independence. However, the continued increase in amendments in the 1970s and 1980s remains unexplained, as amendments became more difficult to approve, requiring supermajorities in the legislature and electorate referenda.
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Supreme Court's role in constitutional amendments
The Supreme Court plays a crucial role in interpreting and enforcing constitutional amendments in the United States. Article III of the US Constitution establishes the federal judiciary, including the Supreme Court, and outlines its powers and jurisdiction. While Congress decides how to organise the Supreme Court, the Judiciary Act of 1789 created a Supreme Court with six justices and established its original jurisdiction to issue writs of mandamus, compelling government officials to act according to the law.
The Supreme Court's role in constitutional amendments is twofold. Firstly, it interprets the meaning and scope of constitutional amendments, ensuring they are applied correctly and consistently. This involves reviewing laws and government actions to ensure they align with the Constitution and its amendments. Secondly, the Court can strike down laws or government actions that violate constitutional amendments. This power of judicial review allows the Supreme Court to act as a check on the other branches of government, ensuring that the rights and principles enshrined in the Constitution are upheld.
The Supreme Court's power to strike down unconstitutional laws was affirmed in a landmark case where it held that an Act of Congress contrary to the Constitution could not stand. This established the Constitution as the supreme law of the land. The Court has also asserted its authority to review state laws and determine their constitutionality. This means that state laws and actions, as well as federal ones, must comply with constitutional amendments.
In addition to interpreting and enforcing existing amendments, the Supreme Court has also played a role in proposing and shaping new constitutional amendments. For example, the Fourteenth Amendment (1869) expanded the application of the Bill of Rights beyond the federal government. The Court's rulings and interpretations of the Constitution can influence the understanding and direction of future amendments.
However, the Supreme Court's role in constitutional amendments can vary in different countries. For instance, in the United Kingdom, the Supreme Court's powers of judicial review are limited, as it cannot overturn primary legislation made by Parliament. Similarly, in Israel, there was an attempt to limit the Supreme Court's power to strike down legislation through a controversial amendment to the Basic Law. This amendment was later struck down by the Supreme Court itself, which emphasised the importance of judicial independence in a democratic country.
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Frequently asked questions
By definition, if it's in the Constitution, it is constitutional. The Supreme Court interprets any ambiguities or conflicts. However, other common-law countries follow the basic structure doctrine, which holds that the Constitution has basic features that cannot be amended.
Yes, Congress can overturn Supreme Court rulings. This can be done by passing statutes that extend constitutional principles through their enumerated powers. However, this is a difficult task that has not been achieved in over 30 years.
An unconstitutional constitutional amendment is a concept in judicial review that even a properly passed and ratified constitutional amendment can be unconstitutional on substantive grounds. For example, if it conflicts with a constitutional norm, value, or principle.
