Jonah Patel
The United States Constitution was designed to be counter-majoritarian or counter-democratic, requiring a societal consensus to be amended. While the Supreme Court interprets the Constitution, Congress can override its interpretation by proposing an amendment with a two-thirds majority in both houses, which must then be ratified by three-quarters of the states. This strategy has been used to override Supreme Court interpretations on several occasions, including the Eleventh Amendment (sovereign immunity) and the Fifth Amendment (double jeopardy). In other countries, such as Germany, Italy, and Honduras, constitutional courts play a similar role in reviewing the constitutionality of laws and amendments. The concept of an unconstitutional constitutional amendment has been explored by legal scholars, who argue that amendments must be harmonious with the core principles of the Constitution.
| Characteristics | Values |
|---|---|
| Can a constitutional amendment be unconstitutional? | Yes |
| What is an example of an unconstitutional constitutional amendment? | A measure to restore the monarchy, which was abolished in 1946 |
| Can Congress overturn Supreme Court rulings? | Yes |
| What is required to override a Supreme Court ruling? | Two-thirds of both houses of Congress must propose an amendment to the Constitution, which then must be ratified by three-quarters of the states |
| Can Congress always overturn Supreme Court rulings? | No, if the Supreme Court is interpreting the Constitution, its opinion is generally final |
| Can Congress overturn a Supreme Court ruling interpreting a federal statute? | Yes, Congress can enact a new or revised statute |
| Can a constitutional amendment override a Supreme Court ruling? | Yes, but it is difficult and requires societal consensus |
| Has a constitutional amendment ever overridden a Supreme Court ruling? | Possibly, but unclear from the sources |
| Can the Supreme Court reject amendments to Basic Laws? | Yes, in "extreme" circumstances |
| Can a constitutional amendment violate the basic structure of a constitution? | Yes, in India, the Supreme Court articulated the basic structure doctrine in the 1960s and 1970s |
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What You'll Learn
Supreme Court's power
The Supreme Court of the United States is the country's highest court and plays a critical role in all matters of federal law. The Constitution was designed to be "counter-majoritarian" or "counter-democratic", requiring societal consensus to amend. This was done to prevent majorities from simply taking over the government. However, this can be frustrating when it comes to issues such as abortion rights.
The Supreme Court's rulings are generally final when interpreting the Constitution. However, Congress can enact new or revised statutes to correct the Supreme Court when it comes to interpreting federal statutes. This is because Congress has the power to regulate commerce, attach conditions to money given to states, and enforce the Reconstruction Amendments.
In the case of a disagreement with the Supreme Court's interpretation of statutes, Congress can propose an amendment to the Constitution, which must be ratified by two-thirds of both houses of Congress and three-quarters of the states. This process is difficult and has only been done a few times.
The ability of the Supreme Court to overturn a constitutional amendment is questionable. While the Supreme Court can interpret the Constitution, no amendment to the Constitution has ever been ruled unconstitutional by a court. The United States Constitution sets high standards for amendments but places few limits on their content.
In other countries, such as Germany and India, constitutional courts have the power to declare amendments unconstitutional if they violate the core principles of the country's basic law or the basic structure of the constitution, respectively.
The Challenge: Creating a Constitutional Amendment
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Interpreting the Constitution
The process of proposing and enacting a constitutional amendment is challenging and requires a significant level of consensus. To override the Supreme Court's interpretation of the Constitution, two-thirds of both houses of Congress must propose an amendment, which then needs to be ratified by three-quarters of the states. This high bar ensures that any changes to the interpretation of the Constitution reflect a broad societal consensus.
The ability of Congress to override the Supreme Court's interpretation of the Constitution through a constitutional amendment has been a topic of debate and strategy for those who disagree with the Court's interpretations. For example, in response to the Supreme Court's ruling on presidential immunity, President Joe Biden called for Supreme Court reforms and a constitutional amendment to counteract the decision. Additionally, Senator Elizabeth Warren introduced the Stop Corporate Capture Act, which aimed to overturn a Supreme Court decision reducing the power of federal agencies to interpret congressional statutes.
While there have been calls and strategies to override Supreme Court interpretations through constitutional amendments, it is important to note that amendments to the Constitution are extremely rare. The last amendment to the Constitution was drafted in 1971, and the last amendment adopted was in 1992. Furthermore, no amendment to the US Constitution has ever been ruled unconstitutional by a court, although the idea of an "unconstitutional constitutional amendment" has been discussed by legal scholars and justices.
In contrast to the US Constitution, some countries have uncodified constitutions, such as Israel and the United Kingdom, which provide more flexibility in interpreting and amending their fundamental laws. Other countries, like Germany, have a Federal Constitutional Court that actively reviews both ordinary laws and constitutional laws to ensure compatibility with the core principles of their Basic Law. This highlights the varying approaches to interpreting and safeguarding constitutional principles across different nations.
Amending the Constitution: A Challenging Task
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Amending federal statutes
The process to amend federal statutes differs from amending the Constitution. The latter is a lengthy process that involves multiple stakeholders and stringent criteria. The Constitution of the United States grants the authority to amend it, as per Article V. An amendment to the Constitution can be proposed by Congress, requiring a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of the state legislatures can call for a constitutional convention to propose an amendment. Once proposed, the amendment is sent to the states for their consideration. To become part of the Constitution, the amendment must be ratified by three-fourths of the states (38 out of 50). The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA).
On the other hand, amending federal statutes typically involves changes to specific laws or rules within the federal framework. This process usually involves several stages of review and consideration. For example, in the United States, a proposed amendment to a federal rule is often considered by an advisory committee during the first year. In the second year, it is reviewed by the Standing Committee and the Judicial Conference, and in the third year, it is evaluated by the Supreme Court and Congress. This process ensures a thorough examination of the proposed amendment before its potential implementation.
The concept of an "unconstitutional constitutional amendment" has been explored by legal scholars and courts in different countries. For instance, in the United States, former Michigan Supreme Court Chief Justice Thomas M. Cooley argued that amendments must be "'harmonious' with the Constitution and cannot bring about a revolution, such as converting a democratic government into a monarchy. Similarly, the Indian Supreme Court articulated the basic structure doctrine, stating that a constitutional amendment violating the basic structure of the Indian Constitution should be declared unconstitutional.
The Federal Constitutional Court of Germany and the Constitutional Court of Italy also play crucial roles in ensuring that amendments comply with the core principles of their respective countries' constitutions. In Israel, the Supreme Court has the power to strike down legislation that contradicts the Basic Laws, and in a 2024 ruling, the court affirmed its ability to reject amendments to these laws in "extreme" circumstances. These examples demonstrate the complex interplay between constitutional amendments and the judicial systems in different nations.
Unchangeable Amendments: Understanding Constitutional Limits
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Congressional strategies
The US Constitution was designed to be "counter-majoritarian", preventing majorities from taking over the government. Amending it is intentionally difficult, requiring a two-thirds majority vote in both houses of Congress and ratification by three-quarters of US states. This is the only direct way for Congress to override a Supreme Court interpretation of the Constitution.
Congress can more readily amend federal statutes, which the Supreme Court interprets but does not have the final say on. For example, in 2024, Senator Elizabeth Warren introduced the Stop Corporate Capture Act, aimed at overturning a Supreme Court decision reducing the power of federal agencies to interpret congressional statutes. President Biden also called for a constitutional amendment to counteract the court's ruling on presidential immunity.
Congress has several enumerated powers given to it by the Constitution, including the ability to regulate commerce and attach conditions to money given to states. Congress can use these powers to check the Supreme Court by enacting statutes that extend constitutional principles. This strategy, used by Senator Warren's bill, involves revising a portion of the Administrative Procedure Act to clarify that agencies have the power to interpret ambiguous federal statutes and that courts should defer to such interpretations.
Congress can also use its power to enforce the Reconstruction Amendments, which sought to enshrine greater equality after the Civil War. By enacting statutes that further these amendments' goals, Congress can address issues of inequality even in the face of contrary Supreme Court interpretations.
Amendment Impact: Understanding the 14th's Power
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Constitutional amendment process
The Constitution of the United States can be amended, but it is a challenging process that requires a societal consensus. The authority to amend the Constitution comes from Article V of the Constitution. The process for amending the Constitution is as follows:
Firstly, two-thirds of both houses of Congress must propose an amendment. It's important to note that the President does not have a constitutional role in this process. Once the amendment is proposed, the Archivist of the United States, who leads the National Archives and Records Administration (NARA), is responsible for overseeing the ratification process. The Archivist and the Director of the Federal Register follow the procedures set by the Secretary of State and the Administrator of General Services.
An alternative way to propose an amendment is through a constitutional convention, which requires the support of two-thirds of the state legislatures. However, in practice, all amendments have been proposed by Congress so far. After the proposal, the amendment must be ratified. Ratification can occur through the legislatures of three-quarters of the states or conventions in three-quarters of the states, depending on what Congress decides. Once the required number of states ratify the amendment, the OFR drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register and U.S. Statutes at Large, officially notifying Congress and the nation that the amendment has been finalised.
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Frequently asked questions
Yes, there are several instances where a constitutional amendment has overridden the Supreme Court. In 1951, the Indian Supreme Court declared that the constitutional amendment power was unlimited. However, in the 1960s and 1970s, the same court articulated the basic structure doctrine, which states that a constitutional amendment that violates the basic structure of the constitution should be deemed unconstitutional. In 2015, the Supreme Court of Honduras declared unconstitutional a part of the original 1982 constitution that imposed a one-term limit on the president. In Israel, the Supreme Court can reject amendments to Basic Laws in "extreme" circumstances.
When the Supreme Court interprets the Constitution, its opinion is generally final. However, Congress can override this interpretation by proposing an amendment to the Constitution with a two-thirds majority in both houses, which must then be ratified by three-quarters of the states.
Yes, Congress can overturn a Supreme Court ruling in certain situations. If the Supreme Court is interpreting a federal statute, Congress can enact a new or revised statute to correct the Court's interpretation. However, if the Court is interpreting the Constitution, its opinion is generally final, and Congress's ability to override it is limited.
