Eleanor Finch
The process of repealing a constitutional amendment is a challenging and rare endeavour. In the history of the United States, only one amendment, the 18th Amendment, which established Prohibition, has been repealed by the states. This was achieved through the ratification of the 21st Amendment in 1933. The Constitution's Article V outlines the requirements for proposing and ratifying amendments, which include a two-thirds majority in Congress or a constitutional convention called for by two-thirds of state legislatures, followed by approval from three-quarters of the states. While the formal amendment process is intended to be difficult, the Supreme Court and legislative decisions have also played a role in effectively modifying the Constitution over time.
| Characteristics | Values |
|---|---|
| Chance of repeal | Very low |
| Process | Proposal and ratification of another amendment |
| Proposal | By two-thirds of the House and Senate, or constitutional convention called for by two-thirds of state legislatures |
| Ratification | Three-quarters of states |
| History | Only one amendment (18th Amendment) repealed in US history |
| Supreme Court | Decisions can effectively modify the Constitution |
| Congress | Given power to enact laws that expand the Constitution |
| Thomas Jefferson | Believed Constitution should be amended at regular intervals |
| James Madison | Rejected Jefferson's idea |
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What You'll Learn
The rarity of repealing an amendment
The US Constitution has been amended only 27 times since it was drafted in 1787, illustrating the rarity of the process. The framers of the Constitution wanted it to be challenging to amend the document, and so any amendment must be ratified by three-quarters of the states.
The process of changing the Constitution by means other than the formal amendment process has occurred and will likely continue to take place. For example, the Supreme Court, in many of its decisions, effectively modifies the Constitution. Similarly, the legislative process can enact laws that expand the Constitution as needed.
In the history of the United States, only one constitutional amendment has been repealed: the 21st Amendment repealed the 18th Amendment, also known as "Prohibition", which banned the manufacture and sale of alcohol. The 21st Amendment also gave states the power to define alcohol laws within their borders.
Three other amendments have been subjects of repeal discussions: the 16th Amendment (the federal income tax), the 17th Amendment (the direct election of Senators), and the 22nd Amendment (presidential term limits). However, none of these discussions came close to fruition.
The Second Amendment has also faced calls for repeal, notably from former Supreme Court Justice John Paul Stevens, who wrote an op-ed in the New York Times in 2018. Stevens argued that the Second Amendment has provided the NRA with a "propaganda weapon of immense power" and that repealing it would weaken the NRA's ability to block gun control legislation.
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The Second Amendment and gun control
The Second Amendment to the US Constitution, which protects the right to keep and bear arms, has been the subject of intense debate and scrutiny in recent years, particularly in the context of gun control. While the amendment has been interpreted by some as guaranteeing an individual's right to own firearms, others argue that it was intended to protect the right of states to maintain militias. This ambiguity has led to a polarising debate on gun control, with advocates of stricter gun laws calling for a repeal of the Second Amendment.
The Second Amendment states: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The interpretation of this amendment has been a subject of controversy, with gun rights groups like the National Rifle Association (NRA) advocating for an expansive interpretation that guarantees an individual's right to own firearms without restrictions. However, this interpretation has been rejected by the US Supreme Court, which clarified that the Second Amendment does not provide an unlimited license to bear arms.
In the landmark case of District of Columbia v. Heller in 2008, the Supreme Court ruled that citizens have the right to keep a handgun at home for self-defence. However, Justice Scalia explicitly stated that the Second Amendment does not grant an absolute right to keep and carry any weapon for any purpose. Despite this clarification, the NRA has continued to challenge gun safety laws, flooding the courts with cases that falsely assume their agenda has been endorsed. Nevertheless, lower courts across the country have consistently upheld the constitutionality of gun safety laws, rejecting the NRA's extreme interpretation of the Second Amendment.
The gun control debate has intensified due to the NRA's influence and fear-mongering narratives. They have employed hundreds of lobbyists to convince members of Congress to oppose any legislation restricting gun ownership. This has made it challenging for federal and state governments to implement meaningful gun control measures, such as universal background checks and bans on military-style weapons. While the Second Amendment protects the right to bear arms, it does not grant individuals unlimited access to any weapon they desire. The Supreme Court has acknowledged that the amendment is compatible with strong firearm regulations, and gun safety laws have been repeatedly upheld as constitutional.
Despite the challenges posed by the NRA and the complexities of amending the Constitution, advocates of gun control continue to push for reform. They propose "common-sense gun reform" that respects the right to own firearms while also implementing measures to enhance public safety. While repealing the Second Amendment may be a challenging endeavour, it is not impossible. The Constitution is intended to be adaptable to the evolving needs of society, and the interpretation and application of amendments can evolve through legislative and judicial processes.
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The 18th Amendment—the only repeal
The 18th Amendment, which established Prohibition, is the only amendment to the US Constitution that has been repealed. The 21st Amendment, which repealed it, was ratified on December 5, 1933.
The 18th Amendment was the result of decades of effort by the temperance movement, which held that a ban on the sale of alcohol would eliminate poverty and improve society. The amendment was proposed by Congress on December 18, 1917, and ratified by the requisite number of states on January 16, 1919. It declared the production, transport and sale of intoxicating liquors illegal, although it did not outlaw the consumption of alcohol.
However, the act was largely a failure, as it proved unable to prevent the mass distribution of alcoholic beverages. It also inadvertently caused a massive increase in organised crime. Public sentiment turned against Prohibition during the 1920s, and 1932 Democratic presidential nominee Franklin D. Roosevelt called for its repeal. His victory in November 1932 led to the end of Prohibition.
The 21st Amendment repealed the 18th and modified the Volstead Act to permit the sale of beer. It also added language to the Constitution stating that states had the ability to define alcohol laws within their borders.
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The difficulty of amending the Constitution
The US Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments—the Bill of Rights—adopted in 1789. The framers of the Constitution wanted the process to be difficult, believing that amendments should never be made frivolously or haphazardly.
The Constitution can be amended in two ways. Firstly, an amendment can be proposed by two-thirds of the House and Senate and then ratified by three-quarters of the states. Secondly, two-thirds of state legislatures can demand a constitutional convention to propose an amendment, which is then subject to the same ratification process.
In the history of the US, only one amendment has been repealed: in 1933, the 21st Amendment repealed the 18th Amendment, which had banned the manufacture and sale of alcohol. Six amendments have been approved by Congress but never ratified by the states. The process is very difficult and time-consuming, and thousands of proposed amendments have failed to be passed.
Despite the rarity of amendments, the document is not frozen in stone. The Supreme Court has, in many of its decisions, effectively modified the Constitution. Congress has also been given the power to enact laws that expand the Constitution as needed to respond to unforeseen future events.
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The role of the Supreme Court
The Supreme Court's role in upholding the Constitution is illustrated in the case of McCardle v. Mississippi, where McCardle claimed that his arrest and detention were unconstitutional. The case eventually reached the Supreme Court, which had jurisdiction over it. However, during the proceedings, Congress repealed the legislation that gave the Court jurisdiction over the case, and the Supreme Court upheld this repeal, citing Article III of the Constitution, which grants Congress the power to make exceptions to the Court's appellate jurisdiction.
The Court's independence is a cornerstone of the constitutional system, allowing it to act as a check on the state and federal legislatures. This independence was a novel concept when the US Constitution was drafted in 1787, and it remains a key feature of the US system of government today.
The Supreme Court's interpretation of the Constitution can shape public policy and the legal landscape. Its decisions can invalidate laws or government actions that conflict with the Constitution, ensuring that the government operates within the boundaries set by the Constitution.
In conclusion, the Supreme Court plays a critical role in safeguarding the US Constitution by interpreting its provisions, enforcing its terms, and ensuring that the actions of the state and federal governments comply with its principles. Its independence allows it to act as a neutral arbiter, upholding the rule of law and protecting the rights and liberties enshrined in the Constitution.
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Frequently asked questions
Very difficult. In the history of the United States, only one constitutional amendment has been repealed—the 18th Amendment, also known as "Prohibition", was repealed by the 21st Amendment in 1933.
The process of repealing a constitutional amendment is the same as the process of amending the constitution. 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. It must then be ratified by three-quarters of the states.
No, a new constitutional convention has never happened.
