Isabella Carter
The process of overturning a constitutional amendment is a complex and challenging endeavour. In the history of the United States, only one constitutional amendment has been repealed – the 21st Amendment in 1933, which overturned the 18th Amendment and brought an end to the prohibition of alcohol. The authority to propose amendments stems from Article V of the Constitution, which outlines a two-thirds majority requirement in the House and Senate or a constitutional convention called for by two-thirds of state legislatures. For an amendment to be ratified, three-quarters of the states must approve it. While the formal process is challenging, the Supreme Court's decisions and interpretations can effectively modify the Constitution, and Congress can enact laws that expand it. The concept of an unconstitutional constitutional amendment has been explored by legal scholars, suggesting that even properly ratified amendments can be deemed unconstitutional if they conflict with constitutional norms, values, or principles.
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What You'll Learn
The US Supreme Court's power to overturn constitutional amendments
The US Constitution's Article V outlines the process of amending the Constitution, which requires a proposal by two-thirds of the House and Senate or by two-thirds of state legislatures calling for a constitutional convention. Any new amendment must then be ratified by three-quarters of the states. This process can be lengthy, and the Supreme Court has stated that ratification must occur within a "reasonable time" after the proposal.
The US Supreme Court has the power to shape the Constitution through its decisions, effectively modifying it. For example, in the 1819 McCulloch v. Maryland case, Chief Justice John Marshall wrote that the Constitution should be adaptable to "the various crises of human affairs". The Supreme Court can also use its power of judicial review to declare an amendment unconstitutional, a doctrine that has been adopted by various courts and legal scholars worldwide. However, this power is not without controversy, as critics argue that it undermines popular sovereignty by allowing unelected Supreme Court justices to overturn the will of the majority.
The idea of an "unconstitutional constitutional amendment" is not new and has been around since at least the 1890s. Amendments, according to former Michigan Supreme Court Chief Justice Thomas M. Cooley, "must be harmonious with the body of the instrument". He argued that an amendment that drastically changes the nature of government, such as converting a democratic republic into an aristocracy, would require a new constitution altogether.
In the history of the United States, only one constitutional amendment has been repealed: the 21st Amendment repealed the 18th Amendment, which had banned the manufacture and sale of alcohol. Two other amendments have been the subject of repeal discussions: the 16th Amendment on federal income tax and the 22nd Amendment limiting the president to two terms. More recently, the Second Amendment, which guarantees the right to bear arms, has faced scrutiny, with former Supreme Court Justice John Paul Stevens calling for its repeal or modification.
While the US Supreme Court can shape and interpret the Constitution through its decisions, the power to formally amend or repeal an amendment ultimately lies with Congress and the states. The Supreme Court's role in judicial review and its ability to declare an amendment unconstitutional remain contentious issues.
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The UK's flexible constitution
The UK's constitution is often described as "unwritten", but this is not entirely accurate. While the UK does not have a codified constitution like most other countries, its constitution can be found in various written sources, including leading statutes, conventions, judicial decisions, and treaties. Examples of constitutional statutes include the Bill of Rights 1689, the Acts of Union 1707 and 1800, the Act of Settlement 1701, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, and the Scotland Act, Northern Ireland Act, and Government of Wales Act 1998.
The UK's constitution is flexible and easily amended compared to countries with codified constitutions. This flexibility has enabled significant changes such as the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and the creation of the Supreme Court. The UK's constitution has multiple guardians, including the Supreme Court, the House of Lords Constitution Committee, the Commons Public Administration and Constitutional Affairs Committee, the Lord Chancellor, and specific constitutional watchdogs like the Judicial Appointments Commission and the Electoral Commission.
The main disadvantage of an uncodified constitution is that it is harder to understand and can be amended more easily. However, this flexibility can also be advantageous, as it allows for swift changes and adaptations to the country's needs. The UK's constitution is also bound to international law, as Parliament has chosen to cooperate with international organisations such as the United Nations, the European Convention on Human Rights, and the World Trade Organization.
Parliamentary sovereignty is commonly regarded as a defining principle of the British Constitution, with Parliament possessing the ultimate law-making power. However, the extent of parliamentary sovereignty is contested, and it is important to note that "Parliament cannot bind itself". The UK's constitution also recognises certain Acts of Parliament as having special constitutional status, such as the Magna Carta, which granted the right of Parliament to exist for "common counsel" before any tax in 1215.
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The US amendment process
The process of amending the US Constitution is a difficult and time-consuming endeavour. 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 most recent amendment, the 27th Amendment, was added in 1992.
The US Constitution's Article V outlines the procedure for altering the document. An amendment can be proposed by two-thirds of the House and Senate (Congress) or by a constitutional convention called for by two-thirds of the state legislatures. The President does not have a constitutional role in this process. Once proposed, the amendment must be ratified by three-quarters of the states (38 out of 50) to become part of the Constitution. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process.
While the formal amendment process is challenging, the US Supreme Court has, in many of its decisions, effectively modified the Constitution. Additionally, Congress has the power to enact laws that expand the Constitution to address unforeseen future events.
In the history of the United States, only one constitutional amendment has been repealed—the 21st Amendment, which repealed the 18th Amendment (Prohibition) in 1933. Six amendments have been approved by Congress but never fully ratified by the states.
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Instances of amendments being overturned
The ability and willingness of the Supreme Court of the United States to overturn any constitutional amendment is questionable. The Constitution of the United States is codified, and Article V allows all amendments except for the condition that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate". Amendments to the Constitution are extremely rare, and no amendment to the Constitution has ever been ruled unconstitutional by a court.
The only instance of an amendment appeal is the 21st Amendment, which repealed the 18th Amendment. The 18th Amendment, ratified in 1919, prohibited "the manufacture, sale, or transportation of intoxicating liquors" nationwide under most circumstances. By the early 1930s, Prohibition had become unpopular, and Congress passed the 21st Amendment, with its repeal provision, in February 1933 just before Franklin Roosevelt became President. The amendment proposed for ratification included language never used before but permitted under Article V: state conventions (and not state legislatures) would be called for ratification votes, out of fear the temperance lobby would influence state lawmakers. When Utah became the 36th state to approve the amendment in December 1933, the ratified 21st Amendment not only repealed the broad prohibition on alcohol but also added language to the Constitution that states had the ability to define alcohol laws within their borders.
Six amendments have been approved by Congress but never fully ratified by the states, with the District of Columbia Voting Rights amendment being the last one that failed to get approval in 1985. The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with the responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified.
United States law professor John R. Vile argues against the idea of having judges impose implicit limits on the United States' constitutional amendment power for fear that such judicial power could just as easily be used for bad or evil ends as for good or desirable ends. For example, a reactionary United States Supreme Court could have struck down the progressive Reconstruction Amendments (which abolished slavery and extended both human rights and the suffrage to African-Americans) as being unconstitutional.
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The difficulty of amending the constitution
The Constitution of the United States is an enduring document, and the process of amending it is challenging and lengthy. The Constitution's Article V outlines the procedure for proposing and ratifying amendments, and it is worth noting that this process has only been successfully navigated 27 times in the history of the United States.
Firstly, for an amendment to be proposed, two-thirds of the House and the Senate must agree, or two-thirds of state legislatures can call for a constitutional convention. This step alone presents a significant hurdle, as achieving such a large majority in favour of a single proposal is a challenging task.
Once an amendment is proposed, it must be ratified by three-quarters of the states, or 38 out of 50 states, to become part of the Constitution. This step can also be lengthy, as seen with the Equal Rights Amendment (ERA), which was passed by Congress in 1972 but still requires one more state's ratification as of 2019.
Additionally, the Supreme Court plays a significant role in interpreting and effectively modifying the Constitution through its decisions. This adds another layer of complexity to the amendment process, as the Court's interpretations can shape the understanding and implementation of constitutional provisions.
In conclusion, the difficulty of amending the Constitution is inherent in its design, ensuring that any changes are carefully considered and widely supported. While the process can be lengthy and challenging, it also ensures that the Constitution remains a stable and enduring framework for the nation.
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Frequently asked questions
An unconstitutional constitutional amendment is a concept in judicial review that suggests that even a properly ratified amendment can be unconstitutional on substantive grounds, such as if it conflicts with a constitutional norm or principle.
Amendments can be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of state legislatures.
Three-quarters of the states (38 out of 50) must ratify an amendment for it to become part of the US Constitution.
Yes, in 1933, the 21st Amendment repealed the 18th Amendment, which had banned the manufacture and sale of alcohol in the US.
