Simone Lawson
The concept of constitutional amendments being deemed unconstitutional has sparked interest among legal scholars and has been observed in various countries. While the U.S. Constitution prohibits certain amendments based on procedural requirements, a more complex question arises when an amendment complies with procedural rules but is challenged as inconsistent with the underlying principles or design of the Constitution. This scenario has sparked debates about the role of the Supreme Court in interpreting and potentially negating amendments through judicial review, either directly or by establishing precedents. The increasing power of constitutional courts worldwide in declaring amendments void based on substantive interpretations has led to discussions about the judicialization of mega-politics, where courts adjudicate matters of significant political importance.
| Characteristics | Values |
|---|---|
| Procedural infirmities | For example, if an amendment does not receive two-thirds of each house of Congress or is not ratified by three-quarters of the states |
| Substantive unconstitutionality | For example, if an amendment deprives a state of its equal voting rights in the Senate without its consent |
| Inconsistency with the underlying principles of the Constitution | For example, if an amendment is inconsistent with democratic principles |
| Inconsistency with other Amendments | For example, if an amendment is inconsistent with the First Amendment |
| Judicial interpretation | If a court interprets an amendment as being inconsistent with constitutional norms or the design of the Constitution |
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What You'll Learn
Procedural infirmities
A constitutional amendment can be deemed invalid due to 'procedural infirmities'. This means that the amendment was not ratified according to the procedural requirements set out in the constitution. For example, in the US, an amendment proposed by Congress must receive a two-thirds majority vote in both houses of Congress and be ratified by three-quarters of the states to be valid. If it does not meet these procedural requirements, it is considered invalid.
The US Supreme Court can also determine that a constitutional amendment is unconstitutional if it was not "lawfully adopted" pursuant to Article V of the US Constitution. This means that the Court can review the process by which an amendment was adopted and determine whether it complied with the procedural requirements set out in Article V. This could include, for example, reviewing whether an amendment was properly ratified by the required number of states.
Additionally, courts in the US and other countries have asserted the power to invalidate constitutional amendments that are deemed to be inconsistent with the "underlying principles" or "design" of the constitution, even if they were adopted following the correct procedure. For example, a court might invalidate an amendment that restricts a state's equal voting rights in the Senate without its consent, as this is explicitly protected by Article V of the US Constitution. Similarly, an amendment that contradicts another part of the constitution, such as the First Amendment, could be deemed invalid. These types of judicial decisions often involve interpreting the constitution's principles and intent, which can be a complex and controversial task.
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Judicial review
In the United States, the Supreme Court has the power to conduct judicial review and determine the constitutionality of amendments. While the Supreme Court generally defers to Congress, there have been questions and discussions around the Court's role in reviewing and potentially negating constitutional amendments. This is particularly relevant when an amendment is deemed to be inconsistent with the First Amendment or other underlying principles of the Constitution.
For example, liberal law professors have argued that amendments inconsistent with the First Amendment might be deemed unconstitutional. This could potentially be used to combat a liberal initiative, such as an amendment to overturn Citizens United. In such a case, the Supreme Court could declare the amendment unconstitutional on the grounds of inconsistency with the First Amendment.
Additionally, an amendment might be considered substantively unconstitutional if it deprives a state of its equal voting rights in the Senate without its consent, as explicitly protected by Article V of the Constitution. The U.S. Supreme Court could determine that a constitutional amendment is unconstitutional on these grounds, as mentioned in Chief Justice Hughes's opinion.
However, it is important to note that the Supreme Court's decisions are generally limited to determining whether an amendment was lawfully adopted pursuant to Article V of the U.S. Constitution. The process of amending the Constitution may be seen as a power that is not governed by the Constitution itself, and therefore outside the reach of the Supreme Court's decision-making.
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Supreme Court authority
The Supreme Courts of Germany, Honduras, India, Italy and Israel have all asserted the authority to determine whether a constitutional amendment is unconstitutional.
In the US, 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. The US Supreme Court could determine that a constitutional amendment is unconstitutional on narrow grounds, but this has not yet occurred. The finding in such a review would not concern the content of the amendment but whether it had been approved.
In 1951, the Indian Supreme Court declared that the constitutional amendment power was unlimited. However, this was reversed in the 1960s and 1970s when the Indian Supreme Court articulated the basic structure doctrine, which holds that a constitutional amendment that violates the basic structure of the Indian Constitution should be declared unconstitutional.
In Israel, an amendment to Basic Law was passed in July 2023, which would have limited the powers of the Supreme Court of Israel to strike down legislation that it considers contrary to the Basic Laws. However, on 1 January 2024, the Supreme Court ruled 12-3 that it may reject amendments to Basic Laws in "extreme" circumstances.
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Voting rights
The Fifteenth Amendment to the US Constitution, ratified in 1870, grants all male citizens the right to vote, regardless of their race, ethnicity, or prior slave status. However, this amendment was not initially effective in ensuring voting rights for African Americans due to discriminatory practices and laws in Southern states, such as poll taxes, literacy tests, and the intimidation tactics of the Ku Klux Klan.
The Supreme Court case of United States v. Reese in 1876 interpreted the Fifteenth Amendment narrowly, determining that it prohibited the restriction of voting rights based on race but did not actively grant the right to vote. This interpretation contributed to the rise of "Jim Crow" laws in the South, which further restricted the voting rights of African Americans.
It wasn't until the 24th Amendment, ratified in 1964, that poll taxes were eliminated, removing a significant barrier for African Americans seeking to exercise their constitutional right to vote. The Voting Rights Act of 1965 further strengthened voting rights by eliminating all forms of discrimination in federal, state, and local elections, prohibiting voter discrimination based on race, color, or membership in a language minority group.
The Fourteenth Amendment's Equal Protection Clause has also been pivotal in ensuring voting rights. It guarantees that no state shall make or enforce any law that abridges the privileges or immunities of US citizens. Under this clause, the Supreme Court has ruled that states may require a duration of residency as a qualification to vote, but such requirements must serve a compelling state interest to be deemed constitutional. The Equal Protection Clause has been applied to redistricting maps, ensuring that racial or language minority groups are not denied an equal opportunity to elect representatives of their choice.
The 26th Amendment, ratified in 1971, lowered the voting age to 18 for all elections, further expanding voting rights to younger citizens.
Federal laws and Supreme Court decisions have played a crucial role in protecting and expanding voting rights, ensuring that all citizens have the opportunity to participate in the democratic process.
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First Amendment
The First Amendment to the US Constitution protects freedom of speech, religion, and assembly, among other things. While the Amendment is broadly construed to protect a wide range of expressive activities, certain types of speech or conduct may be restricted or prohibited if they fall within specific categories that are outside the scope of protection. These categories include things like incitement, true threats, obscenity, child pornography, and speech integral to criminal conduct.
For example, while individuals have the right to advocate for political or social change, they cannot do so in a way that presents a clear and present danger of inciting imminent lawless action and is likely to produce such action. Similarly, while individuals have the right to express their views, they cannot make credible threats of violence or intimidate others with the intent to silence their speech.
Obscenity and child pornography are also categories of speech that fall outside the protection of the First Amendment. Obscenity is defined as material that, taken as a whole, appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. Child pornography, on the other hand, is not protected because it involves the exploitation of children and is intrinsically related to their sexual abuse.
Additionally, speech that is integral to criminal conduct can be restricted or prohibited. This includes things like soliciting or conspiring to commit a crime, fraud, or assisting in criminal activities. In conclusion, while the First Amendment provides robust protection for expressive activities, certain well-defined categories of speech or conduct may be excluded from its protection based on their potential to cause harm or infringe on the rights of others.
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Frequently asked questions
Yes, a constitutional amendment can be deemed unconstitutional. The U.S. Constitution prohibits certain constitutional amendments. For example, if an amendment is not ratified by three-quarters of the states, it is invalid.
Courts can determine if an amendment has been approved and can invalidate it based on this. Courts can also invalidate amendments based on textually-entrenched rules and extra-constitutional norms.
The U.S. Supreme Court can determine that a constitutional amendment is unconstitutional on narrow grounds. The Supreme Courts of Germany, Honduras, India, and Italy have also asserted such authority.
Yes, imagine an amendment that overturned Citizens United. The Supreme Court could declare it unconstitutional on the grounds of inconsistency with the First Amendment.
