Eleanor Finch
The Constitution of the United States is the foundation of the country's legal system, outlining the rights and freedoms of its citizens. Amending it is a complex process that involves Congress proposing changes, which must then be ratified by a majority of states. However, what happens when an amendment is violated? In theory, the Supreme Court could use the 'unconstitutional constitutional amendment doctrine' to strike down changes that go against the core principles of the Constitution. In practice, this rarely happens, and government officials often face no consequences for violating constitutional rights, such as freedom of speech or equal protection under the law. This impunity has led to widespread criticism and concerns about the erosion of civil liberties.
| Characteristics | Values |
|---|---|
| Accountability for government officials who violate the constitution | Low due to the Supreme Court's qualified immunity loophole |
| Possibility of the Supreme Court utilizing the unconstitutional constitutional amendment doctrine | Possible but not plausible according to US law professor Michael Dorf |
| Violation of the First Amendment | Frequent |
| Violation of the Fourteenth Amendment | Frequent |
| Violation of the Fifth Amendment | Observed |
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What You'll Learn
Accountability for government officials
Section 1983, a federal law enacted in 1871, is intended to hold state and local government officials liable for monetary damages if they violate constitutional rights. This law was created to address the issue of law enforcement turning a blind eye to the lynching of newly freed Black citizens. Unfortunately, the concept of qualified immunity, established by the Supreme Court in the 1980s, has created a substantial loophole that hinders accountability. Qualified immunity shields government agents from being held personally liable for constitutional violations unless the violation was of a "clearly established" law. This standard has been criticized for making it extremely difficult to hold government officials accountable for their misconduct.
The American Civil Liberties Union (ACLU) has been actively involved in cases where constitutional rights have been violated. For instance, the ACLU has argued against imposing a prison sentence instead of probation based on a defendant's inability to purchase a house, as it violates equal protection guarantees in the Fourteenth Amendment. In another case, the ACLU contended that a 12-year-old boy was not in custody and should have been entitled to Miranda warnings during a police interrogation, and that admitting his statements as evidence violated the Fifth Amendment. These efforts by the ACLU aim to uphold constitutional rights and hold government officials accountable for any violations.
Despite these efforts, there is a prevailing sentiment that those who violate the Constitution, particularly the First Amendment, often go unpunished. This impunity extends to government officials, who rarely face consequences beyond occasional public disapprobation. The lack of accountability measures allows for a certain degree of willful violation of constitutional rights. This issue is not limited to a specific branch of government, as exemplified by the Federal Communications Commission (FCC) being found to have violated the First Amendment and the Fourteenth Amendment on multiple occasions without any apparent repercussions.
To enhance accountability for government officials, reforms are necessary to address the issue of qualified immunity. By closing this loophole, government officials can be held personally liable for their actions, ensuring that constitutional misconduct is appropriately punished and deterred. Strengthening accountability measures will reinforce the integrity of the Constitution and protect the rights guaranteed to the people.
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Constitutional amendment doctrine
The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures. A proposed amendment becomes part of the Constitution when ratified by three-quarters of the States (38 out of 50).
In the Indian Supreme Court, the basic structure doctrine holds that a constitutional amendment violating the basic structure of the Indian Constitution should be declared unconstitutional. In the US, the Supreme Court could theoretically use the unconstitutional constitutional amendment doctrine to strike down amendments that violate the Constitution. However, this doctrine has not been embraced by the Court, and it is unclear if it ever will be.
The Supreme Court has created a loophole that makes it very difficult to hold government officials personally liable for violating the Constitution. This loophole is called qualified immunity, and it applies to federal, state, and local government officials. As a result, constitutional violations by the government often go unpunished. For example, the First Amendment has been violated many times, but those responsible are rarely held accountable.
In conclusion, while the US Constitution outlines a process for amending the document, it is possible for an amendment to be unconstitutional. However, the Supreme Court is reluctant to strike down amendments, and government officials are often not held liable for constitutional violations.
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Constitutional amendment process
The process of amending the Constitution of the United States is a difficult and time-consuming task, as the framers intended it to be when it was first drafted in 1787. Since then, there have only been 27 amendments, including the first 10 amendments, which were adopted four years later as the Bill of Rights.
The authority to amend the Constitution is derived from Article V of the Constitution. An amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. The President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval. Alternatively, a constitutional convention can be called for by two-thirds of the State legislatures, although this has never happened.
Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist follows procedures and customs established by the Secretary of State and the Administrator of General Services. Many duties have been delegated to the Director of the Federal Register, who forwards the original document for processing and publication. The Director also examines ratification documents for facial legal sufficiency and an authenticating signature.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50). The OFR then drafts a formal proclamation for the Archivist to certify that the amendment is valid, and this certification is published in the Federal Register and U.S. Statutes at Large. This serves as official notice to Congress and the Nation that the amendment process is complete.
In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, including the President.
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Constitutional amendment power
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. An amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50 states).
In the United States, there have been instances where constitutional rights have been violated, and the Supreme Court has played a significant role in interpreting and enforcing these rights. For example, in the case of State V. K.r.c., the court of appeals ruled that a 12-year-old boy was not in custody and thus not entitled to Miranda warnings during a police interrogation, potentially violating his Fifth Amendment rights.
The Supreme Court has also addressed issues of equal protection, as in the case where the ACLU argued against imposing a harsher sentence on a defendant due to their inability to purchase a home, which impinged on the equal protection guarantees in the Fourteenth Amendment. Additionally, the Supreme Court has dealt with the concept of qualified immunity, a rule that makes it challenging to hold government officials personally liable for wrongdoing.
While the United States grapples with violations and interpretations, other countries have their own approaches. For instance, the Indian Supreme Court articulated the basic structure doctrine, suggesting that an amendment violating the Indian Constitution's basic structure should be deemed unconstitutional. This was a shift from their earlier stance in 1951, when they proclaimed unlimited constitutional amendment power.
The discussion surrounding constitutional amendment power is complex and dynamic, involving legal scholars, judges, and policymakers. It is an ongoing process of interpretation and enforcement to ensure that the rights guaranteed by the Constitution are upheld and that any violations are addressed through legal mechanisms.
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Constitutional rights violations
The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50).
Despite the existence of a process to amend the Constitution, violations of constitutional rights do occur. For example, the ACLU has been involved in cases where constitutional rights were violated, but the victim still lost the case. In one instance, a 12-year-old boy was interrogated by a school resource officer without being read his Miranda rights, and his statements were admitted into evidence despite violating the Fifth Amendment. In another case, the ACLU argued that imposing a harsher sentence on a defendant due to their inability to purchase a home violated equal protection guarantees in the Fourteenth Amendment.
In the United States, qualified immunity, a rule created by the Supreme Court, makes it challenging to hold government officials personally liable for violating constitutional rights. This rule has been criticised for allowing "palpably unreasonable conduct [to go] unpunished". An example of this is the case of Allah, who was placed in solitary confinement before being convicted of a crime. While federal judges agreed that this violated his constitutional rights, he lost his case due to qualified immunity.
The First Amendment, which guarantees freedom of speech, has been frequently violated, including by national leaders, particularly during times of crisis. However, those who violate the Constitution are rarely held accountable, and there is a lack of public shame or self-doubt about being taken to court for constitutional violations.
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Frequently asked questions
While each citizen cannot violate the Constitution, the government can violate the Constitution and harm citizens by doing so. For example, the Federal Communications Commission has been found to have violated the First and Fourteenth Amendments. While there is no penalty for violating the Constitution, there have been instances of lawsuits and courts finding laws and regulations unconstitutional.
Government officials are not typically held personally liable for violating the Constitution due to qualified immunity. This rule allows government officials to avoid liability unless the violation was of a clearly established law.
The authority to amend the Constitution comes from Article V of the Constitution. An amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. After an amendment is proposed, it becomes part of the Constitution once it is ratified by three-fourths of the states.
