Eleanor Finch
The process of cancelling a constitutional amendment is known as repeal. The odds of a constitutional amendment being repealed are extremely rare and slim. 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 rare, with the last amendment drafted being the 26th in 1971, and the last one adopted being the 27th in 1992. 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).
| Characteristics | Values |
|---|---|
| Possibility of occurrence | Very low |
| Process | Proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures |
| Instances | Only the 18th Amendment, which established Prohibition, has been repealed by the states |
| Difficulty | Equivalent to a person living to 80 years old being struck by lightning during their lifetime |
| Proposal | Requires a two-thirds majority vote in both the House of Representatives and the Senate |
| Ratification | Requires ratification by three-fourths of the States (38 out of 50) |
| Unconstitutionality | Even a properly ratified amendment can be deemed unconstitutional if it conflicts with constitutional norms, values, or principles |
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What You'll Learn
The rarity of constitutional amendments being repealed
The process of repealing a constitutional amendment is a rare occurrence. The US Constitution 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". The last amendment to be drafted was the 26th in 1971, and the last to be adopted was the 27th in 1992, which was initially proposed in 1789 but failed to be ratified until much later.
The odds of an amendment being repealed are extremely slim, and in the history of the US Constitution, only one amendment has been repealed—the 18th Amendment, which established Prohibition. By the early 1930s, Prohibition had become unpopular, and Congress passed the 21st Amendment, which included a repeal provision. The 21st Amendment is unique among the 27 amendments for being the only one to repeal a prior amendment and the only amendment to be ratified by state ratifying conventions.
The process of amending the Constitution is designed to be challenging, and the same is true for repealing an amendment. An amendment must be proposed by two-thirds of the House and Senate or by a constitutional convention called for by two-thirds of the state legislatures. This high threshold ensures that any changes to the Constitution reflect broad consensus and support.
While there have been discussions about repealing other amendments, such as the 16th (federal income tax), 17th (direct election of Senators), and 22nd (presidential term limits), none of these discussions have gained sufficient momentum.
In conclusion, the rarity of constitutional amendments being repealed underscores the enduring nature of the US Constitution and the careful consideration that goes into the amendment process. The high standards for amendments and the rigorous procedure for ratification contribute to the stability and continuity of the nation's founding document.
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The 18th Amendment: the only amendment to be repealed
The 18th Amendment to the United States Constitution, which established the prohibition of alcohol, is the only amendment to have been repealed. The amendment was ratified on January 16, 1919, after being proposed by Congress in 1917. It prohibited "the manufacture, sale, or transportation of intoxicating liquors" nationwide under most circumstances.
The 18th Amendment was the result of decades of efforts by the temperance movement, which argued that a ban on alcohol would eliminate poverty and other societal problems. However, the amendment proved to be highly unpopular and ineffective. Despite the amendment, many Americans continued to drink, and the prohibition gave rise to a profitable black market for alcohol, fuelling the rise of organised crime.
By the early 1930s, public sentiment had turned against Prohibition, and Congress passed the 21st Amendment, with its repeal provision, in February 1933. The 21st Amendment was proposed by the 72nd Congress on February 20, 1933, and was ratified by the requisite number of states on December 5, 1933. The 18th Amendment was officially repealed when Utah became the 36th state to approve the 21st Amendment.
The 21st Amendment not only repealed the broad prohibition on alcohol but also added language to the Constitution, stating that individual states had the ability to define alcohol laws within their borders. The amendment was unique in being the only one to repeal a prior amendment and the only amendment to have been ratified by state ratifying conventions.
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The process of repealing an amendment
To repeal an amendment, a proposal must be made either 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 state legislatures. The former method has been the only method used for all 27 amendments to the Constitution. Once proposed, an amendment becomes part of the Constitution when ratified by three-fourths of the states.
The 18th Amendment, which established Prohibition, is the only amendment to have been repealed, and this was achieved through the 21st Amendment. By the early 1930s, Prohibition had become unpopular, and Congress passed the 21st Amendment in 1933, with ratification by state conventions, not state legislatures, due to fears of the temperance lobby's influence. Utah became the final state needed to ratify the amendment, and it also added language to the Constitution, granting states the power to define alcohol laws within their borders.
The idea of an unconstitutional amendment has been proposed by legal scholars, suggesting that even a properly ratified amendment can be deemed unconstitutional if it conflicts with a constitutional norm, value, or principle. However, no amendment to the US Constitution has ever been ruled unconstitutional by a court. The odds of repealing an amendment are considered extremely slim, comparable to a person living to 80 being struck by lightning.
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The possibility of unconstitutional amendments
The process of repealing or amending the US Constitution is extremely rare and challenging. 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 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 state legislatures.
An amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50). This process is overseen by the Archivist of the United States, who certifies that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register, serving as official notice to Congress and the nation.
Despite the rarity of amendments, there have been instances of proposed repeals. For example, there have been talks about repealing the 17th Amendment (direct election of Senators), the 16th Amendment (federal income tax), and the 22nd Amendment (presidential term limits). However, none of these discussions gained traction.
The concept of "unconstitutional constitutional amendments" has been explored by legal scholars and courts worldwide, including in the United States. This concept suggests that even a properly passed and ratified amendment can be deemed unconstitutional if it conflicts with a subsequent amendment or certain principles, values, or norms. Critics of this doctrine argue that it violates canons of construction, such as the lex specialis canon, which prioritises specific language over general language.
While the US Supreme Court has the authority to overturn any constitutional amendment, it has never done so. The high standards for amendments set by the codified US Constitution make it challenging for amendments to be deemed unconstitutional.
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The limits of amendment powers
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. Amendments may be proposed by 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 state legislatures. An amendment becomes part of the Constitution once it is ratified by three-fourths of the states.
While amendments to the Constitution are extremely rare, the process of repealing or cancelling an amendment is even more challenging. In the history of the United States, only one amendment, the 18th Amendment, which established Prohibition, was later repealed by the 21st Amendment. The odds of repealing an amendment are extremely slim, comparable to a person living to 80 years old being struck by lightning during their lifetime.
The concept of an "unconstitutional constitutional amendment" has been explored by legal scholars and courts. It refers to an amendment that is properly passed and ratified but is considered unconstitutional on substantive grounds, such as conflicting with constitutional norms, values, or principles. For example, an amendment that enshrines white supremacy would be incompatible with the commonly cited constitutional value of equality. However, no amendment to the US Constitution has ever been ruled unconstitutional by a court, and the ability of the Supreme Court to overturn any constitutional amendment is questionable.
The US Constitution sets high standards for amendments but places few limits on their content. Some scholars argue that amendments must be harmonious with the existing Constitution and cannot render it unrecognizable. For instance, an amendment that converts a democratic government into an aristocracy or monarchy would require a new constitution. The doctrine of unconstitutional constitutional amendments generally applies specifically to amendments, but there have been proposals to extend it to original parts of a constitution.
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Frequently asked questions
The cancellation of a constitutional amendment is also known as the repeal of an amendment. This is when an amendment that has been added to a constitution is removed.
In the US, amendments are proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. An amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states. To repeal an amendment, the same process must be followed. Only one amendment has ever been repealed in the US, the 18th Amendment, which was repealed by the 21st Amendment.
Some legal scholars argue that even a properly ratified constitutional amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle. However, no amendment to the US Constitution has ever been ruled unconstitutional by a court.
