Malcolm Rivera
The United States Constitution is a codified document outlining the powers of the federal and state governments and protecting individuals' rights. Amending it is a challenging process, and amendments are rare. The last amendment to the US Constitution was adopted in 1992, and only one amendment has ever been repealed. While there is no formal independent repeal process, there are two ways to repeal an amendment: one is for the proposed amendment to be passed by the House and Senate with two-thirds majority votes and then ratified by three-fourths of the states; the second way is to have a Constitutional Convention, which would require two-thirds of state legislatures to call for it, and the resulting amendments would need to be ratified by three-fourths of the states. The Supreme Court does not have the authority to overturn an amendment, but it could potentially rule that an amendment is not constitutionally permissible, or that it was never part of the Constitution to begin with.
| Characteristics | Values |
|---|---|
| Difficulty level | Very difficult |
| Process | No formal independent "repeal" process |
| Number of ways to repeal an amendment | Two |
| First way | Proposed amendment passed by House and Senate with two-thirds majority votes, then ratified by three-fourths of states |
| Second way | Constitutional Convention called by two-thirds of state legislatures, then amendments drafted and ratified by three-fourths of states |
| Role of President | None |
| Possibility of being ruled unconstitutional by a court | Unlikely, but possible according to some legal scholars |
| Possibility of Supreme Court overturning | Unlikely, but possible according to some legal scholars |
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What You'll Learn
Achieving a two-thirds majority in the House and Senate
Build a Strong Coalition: Forming a broad coalition of supporters from across the political spectrum is essential. Reach out to various interest groups, non-governmental organizations, and grassroots movements that share your goal of overturning the amendment. This will help you gain a wider base of support and put pressure on lawmakers.
Educate and Persuade: Lawmakers need to understand the importance of overturning the amendment and how it aligns with their constituents' interests. Provide them with comprehensive information, data, and arguments that highlight the potential benefits of overturning the amendment. Address their concerns and counter potential objections with well-researched responses.
Foster Relationships with Lawmakers: Cultivate relationships with individual lawmakers, especially those who are undecided or hold influential positions in the House and Senate. Arrange meetings, attend town hall events, and utilize various communication channels to engage with them and their staff. Building personal connections can make your case more compelling and increase the chances of gaining their support.
Utilize Media and Public Opinion: Generate public awareness and support for overturning the amendment by utilizing various media platforms, including traditional media and social media. Highlight the potential impact of the amendment on people's lives and encourage them to contact their representatives to express their views. A strong public mandate can influence lawmakers' decisions.
Offer Compromises and Incentives: Identify areas where compromises can be made to address lawmakers' concerns. Offer incentives or propose alternative solutions that can make the prospect of overturning the amendment more appealing to lawmakers. This could include proposing additional amendments or policy changes that align with their priorities.
By implementing these strategies and maintaining persistence in your efforts, you can increase the chances of achieving a two-thirds majority in the House and Senate, bringing you a step closer to successfully overturning the amendment.
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Ratification by three-fourths of states
Ratification by three-fourths of the states is one of the two ways to repeal an amendment to the US Constitution. The other way is to have a Constitutional Convention.
The process of repealing an amendment by having it ratified by three-fourths of the states starts with a new amendment being drafted either by a convention of the states or by Congress. The new amendment is then proposed directly to the several states for ratification. When the proposed amendment is sent to the states, Article V provides that the amendment "shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."
Once three-fourths of the states (thirty-eight) ratify the proposed amendment under either method, the amendment is enacted and becomes part of the Constitution. It is important to note that, unlike the normal legislative process, the President has no role in the amendment process, as Article V does not mention the executive branch.
The US Constitution sets high standards for amendments and makes it difficult to change. Amendments to the Constitution are extremely rare; the last amendment to be drafted was the Twenty-sixth in 1971, and the last to be adopted was the Twenty-seventh in 1992. The high threshold for making changes to the Constitution makes it unlikely that an amendment will be repealed.
While there is no formal independent "repeal" process for constitutional amendments, it is theoretically possible for an amendment to be deemed unconstitutional. The concept of an unconstitutional constitutional amendment is based on the idea that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional or extra-constitutional norm, value, or principle. However, no amendment to the US Constitution has ever been ruled unconstitutional by a court.
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Calling a Constitutional Convention
The process of amending the Constitution is deliberately challenging, as evidenced by the fact that only one amendment, the 18th Amendment, has ever been repealed and replaced by the 21st Amendment. The high threshold for amending the Constitution ensures that any changes made are carefully considered and widely supported.
The role of the Supreme Court in the amendment process has been a subject of debate. While the Supreme Court does not have the explicit authority to overturn a constitutional amendment, there is a concept in judicial review known as an "unconstitutional constitutional amendment." This concept suggests that even a properly ratified amendment can be deemed unconstitutional if it conflicts with constitutional norms, values, or principles. However, this doctrine has not been widely adopted, and no amendment to the U.S. Constitution has ever been ruled unconstitutional by a court.
The possibility of the Supreme Court adopting this doctrine has sparked criticism, with concerns that it would undermine popular sovereignty by giving unelected Supreme Court justices the power to overturn the will of the majority. Additionally, it could further complicate the already challenging process of amending the Constitution.
In summary, calling a Constitutional Convention is a viable method for overturning an amendment to the Constitution, but it requires significant support from state legislatures and ratification by a large number of states. The amendment process in the United States is intentionally difficult to ensure that any changes to the Constitution are thoroughly deliberated and broadly accepted.
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Supreme Court ruling on an amendment process
The process of amending the US Constitution is deliberately challenging. The Constitution's Article V outlines that an amendment must be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of state legislatures. The amendment must then be ratified by three-quarters of the states.
The US Supreme Court has the final say on Constitutional matters. It can rule on whether a Constitutional right has been violated and can strike down state laws found to be in violation of the Constitution. The Supreme Court also has the power to issue writs of mandamus, compelling government officials to act in accordance with the law.
The Supreme Court's power of judicial review is essential to ensuring that each branch of government recognizes its own limitations. The Court can also protect civil rights and liberties by striking down laws that violate the Constitution.
While it is rare, an existing constitutional amendment can be repealed by the ratification of another amendment. This has only happened once in US history, when the 21st Amendment repealed the 18th Amendment, ending Prohibition.
The concept of an "unconstitutional constitutional amendment" has been proposed by legal scholars, suggesting that even a properly ratified amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. However, this idea has been criticized as undermining popular sovereignty by giving the Supreme Court the power to overturn the will of the people.
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Unconstitutionality of an amendment
The authority to amend the US Constitution is derived from Article V of the Constitution. The process of amending the Constitution is a lengthy and challenging one, and there are only two ways to repeal an amendment. Firstly, a proposed amendment must be passed by the House and the Senate with a two-thirds majority vote. Following this, the proposed amendment must be ratified by three-fourths of the states. The second method to repeal an amendment is to hold a Constitutional Convention, which would require two-thirds of state legislatures to call for it. The states would then draft amendments, which would again need to be ratified by three-fourths of the states.
The question of whether a constitutional amendment is indeed unconstitutional is a complex one. US law professor Michael Dorf has argued that it is possible for the US Supreme Court to utilize the unconstitutional constitutional amendment doctrine to strike down unequal apportionment in the US Senate. However, Dorf expresses doubt that the Supreme Court would embrace this doctrine anytime soon. Yaniv Roznai and Tamar Hostovsky Brandes have argued that it would be legitimate for courts to strike down constitutional replacements that are not fully democratic or inclusive. This is criticized by Mike Rappaport, who argues that the adoption of this doctrine would undermine popular sovereignty, giving the Supreme Court justices the power to overturn the will of the majority of the American people.
The US Supreme Court adopting the unconstitutional constitutional amendment doctrine could result in outcomes that liberal living constitutionalists may not agree with. For example, the Supreme Court could use this doctrine to strike down a new constitutional amendment that overturns the 2010 Citizens United ruling, on the basis that it conflicts with the idea of free speech embodied in the First Amendment. Additionally, achieving constitutional change through the courts is much easier than going through the Article V constitutional amendment process, as it requires the agreement of a simple majority of the Supreme Court as opposed to two-thirds of Congress and three-fourths of state legislatures.
The question of whether a constitutional amendment is unconstitutional should not only be decided based on whether the constitution-amending process was democratic, inclusive, and deliberative, but also on whether the constitution-making process was democratic, inclusive, and deliberative.
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Frequently asked questions
An unconstitutional constitutional amendment is a concept in judicial review that suggests that even a properly passed and ratified constitutional amendment can be deemed unconstitutional if it conflicts with a constitutional norm, value, or principle.
There are two ways to repeal an amendment to the US Constitution. One way is for the proposed amendment to be passed by the House and the Senate with two-thirds majority votes. Then, the proposed amendment would have to be ratified by three-fourths of the states. The second way to repeal an amendment is to have a Constitutional Convention. Two-thirds of state legislatures would need to call for this convention, and the drafted amendments would have to be ratified by three-fourths of the states.
The Supreme Court does not have the authority to overturn an amendment to the US Constitution. However, the Supreme Court could issue a Mandamus forcing the Archivist to reject the Amendment on the grounds that it cannot be amended into the Constitution.
The 18th Amendment, which prohibited the making, transportation, and sale of alcohol, is the only amendment to the US Constitution that has been repealed, with the adoption of the 21st Amendment.
