Eleanor Finch
The ability to repeal or amend a constitutional amendment is a topic of debate among legal scholars and professionals. The process of amending a constitution is a complex one, and it varies across different regions and nations. In the United States, for example, the Constitution's Article V outlines the process, requiring a proposal by two-thirds of the House and Senate or a constitutional convention called for by two-thirds of state legislatures. The idea of an unconstitutional constitutional amendment has been explored, suggesting that certain amendments may be deemed invalid if they conflict with fundamental constitutional values or render the constitution unrecognizable. The authority to amend a constitution and the specific procedures involved are essential aspects of the legal and political landscape, often sparking discussions and debates among legal experts and the general public.
Process of repealing a constitutional amendment
| Characteristics | Values |
|---|---|
| Authority to amend | Derived from Article V of the Constitution |
| Proposal | Proposed by two-thirds of the House and Senate or by a constitutional convention called for by two-thirds of the state legislatures |
| Role of the President | The President does not have a constitutional role in the amendment process |
| Role of the Archivist of the United States | Administers the ratification process and certifies that the amendment is valid and has become part of the Constitution |
| Role of the OFR | Adds legislative history notes to the joint resolution and publishes it in slip law format |
| Unconstitutional amendments | The ability of the Supreme Court to overturn any constitutional amendment is questionable; an amendment cannot amend if it renders a constitution unrecognizable |
| Examples of potentially unconstitutional amendments | An amendment barring most political speech, an amendment that enshrines white supremacy and denies the human dignity of non-whites, an amendment abolishing one or more US states |
| Tennessee State Constitution amendment process | Through the legislature and by constitutional convention, must be approved by a majority of voters in a referendum |
| Texas State Constitution | The current constitution has been amended 474 times |
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What You'll Learn
The ability of the Supreme Court to overturn amendments
The process of repealing a constitutional amendment is an arduous task. The Constitution's Article V requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. The United States Constitution sets high standards for amendments, but places few limits on the content of amendments. The idea of an "unconstitutional constitutional amendment" has been around since at least the 1890s, but no amendment to the Constitution has ever been ruled unconstitutional by a court.
The United States Supreme Court does not have the power to overturn amendments. However, the ability and willingness of the Supreme Court to adopt the "unconstitutional constitutional amendment" doctrine have been questioned by legal scholars and academics. United States law professor Mike Rappaport criticizes the doctrine, arguing that its adoption would undermine popular sovereignty by allowing nine unelected US Supreme Court justices with life tenure to overturn the will of a huge majority of the American people.
The process of amending the Constitution does not involve the President and is instead proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. After 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. When the Office of the Federal Register (OFR) verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.
The United Kingdom's Supreme Court, on the other hand, has limited powers of judicial review as it cannot overturn any primary legislation made by Parliament, and any Act of Parliament can become part of the UK's constitutional sources without binding scrutiny. The Constitution of the United Kingdom is not strictly codified, enabling it to be easily changed as no provisions are formally entrenched.
In conclusion, while the United States Supreme Court does not have the explicit power to overturn amendments, the potential adoption of the "unconstitutional constitutional amendment" doctrine raises questions about the Court's ability to indirectly influence and shape the interpretation and application of amendments through its judicial review powers.
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The President's non-role in the amendment process
The process of amending the US Constitution is outlined in Article V of the Constitution. It states that an amendment 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.
The President does not have a constitutional role in the amendment process. The joint resolution proposing an amendment does not go to the White House for signature or approval. Instead, the original document is sent directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the resolution in slip law format, as well as assembling information packages for the states.
The Archivist of the United States, who heads NARA, is responsible for administering the ratification process. They submit the proposed amendment to the states for their consideration, and when a state ratifies it, the state sends an original or certified copy of the action to the Archivist, who then forwards it to the Director of the Federal Register. The Director examines the ratification documents for authenticity and legal sufficiency. If the documents are in order, the Director acknowledges receipt and maintains custody of them.
Once the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register.
While the President does not have a formal role in proposing or ratifying amendments, there have been instances where Presidents have played a ceremonial or ministerial role. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment, and Presidents Johnson and Nixon witnessed the certification of amendments. Additionally, President Jimmy Carter signed a joint resolution to extend the deadline for ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary.
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The proposal process for amendments
The process of proposing amendments to the Constitution of the United States is outlined in Article V of the Constitution. The proposal process for amendments can be initiated in two ways, both of which require significant support:
Firstly, a proposal can originate from Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is a joint resolution that does not require the signature or approval of the President, as they do not have a constitutional role in the amendment process.
Secondly, a proposal can be initiated by a constitutional convention called for by at least two-thirds of the state legislatures. In this scenario, each state sends delegates to the convention, where multiple amendments may be proposed. However, it is important to note that none of the amendments to the Constitution thus far have been proposed through a constitutional convention.
Once an amendment is proposed, it is forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role by adding legislative history notes to the joint resolution and publishing it in slip law format. They also assemble an information package for the states, providing formal copies of the joint resolution.
The next step is for the states to ratify the proposed amendment. This can be achieved through one of two methods: either by a vote in the state legislatures or through special ratifying "conventions". For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states).
Once the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification is then published in the Federal Register, marking the completion of the amendment process. In recent times, the signing of the certification has become a ceremonial event witnessed by dignitaries, including the President on some occasions.
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The ratification process for amendments
The process of amending the US Constitution is outlined in Article V of the US Constitution. An amendment 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. The President does not have a constitutional role in the amendment process, and the joint resolution does not require presidential approval.
Once an amendment has been 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 submits the proposed amendment to the states for their consideration, and the amendment is then ratified by either the legislatures of three-quarters of the states (38 of 50 states) or by ratifying conventions in three-quarters of the states. This process has only been used once in American history, with the 1933 ratification of the 21st Amendment.
When an amendment is ratified, the state sends the Archivist an original or certified copy of the state action, which is conveyed to the Director of the Federal Register. The OFR examines the ratification documents and, if they are in good order, acknowledges receipt and maintains custody of them. Once the OFR has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and serves as official notice that the amendment process has been completed.
It is important to note that the ratification process for amendments can vary and is not described in detail in Article V of the Constitution or the relevant legislation. The procedures followed are based on customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties.
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The history of the idea of unconstitutional amendments
The concept of "unconstitutional constitutional amendments" refers to the idea that even a properly ratified constitutional amendment may still be unconstitutional on substantive grounds. This could be due to a conflict with a constitutional or extra-constitutional norm, value, and/or principle. While no amendment to the US Constitution has ever been ruled unconstitutional by a court, the idea of unconstitutional amendments has been around since at least the 1890s.
In 1893, former Michigan Supreme Court Chief Justice Thomas M. Cooley embraced this concept, arguing that amendments "cannot be revolutionary; they must be harmonious with the body of the instrument". He gave the example that an amendment converting a democratic government into an aristocracy or monarchy would not be a valid amendment, but rather a revolution. Similarly, in 1910, US law professor Arthur Machen argued that the Fifteenth Amendment might be unconstitutional.
In the 1960s and 1970s, the Indian Supreme Court articulated the "basic structure doctrine", which states that a constitutional amendment that violates the basic structure of a constitution should be deemed unconstitutional. This was a significant shift from their 1951 stance, which declared that the constitutional amendment power was unlimited.
In a 1985 article, United States law professor John R. Vile criticised the idea of judges imposing implicit limits on the US constitutional amendment power. He argued that such judicial power could be used for undesirable ends, especially if the original text of the constitution is not particularly liberal or progressive. For example, a reactionary Supreme Court could have struck down progressive amendments like the Reconstruction Amendments, which abolished slavery and extended human rights to African Americans.
United States law professor Mike Rappaport also criticises the unconstitutional constitutional amendment doctrine, arguing that its adoption in the US would undermine popular sovereignty by giving the US Supreme Court the power to overturn the will of the majority.
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Frequently asked questions
It is called repealing an amendment.
An amendment can be proposed by two-thirds of the House and Senate or by a constitutional convention called for by two-thirds of state legislatures.
A constitutional convention is when two-thirds of the state legislatures vote on whether to call a convention to amend the constitution.
The proposed amendment must be approved by a majority of voters in a referendum. It is then submitted to the voters in an election. Once the required number of authenticated ratification documents is received, a formal proclamation is drafted for the Archivist to certify that the amendment is valid.
The ability of the Supreme Court to repeal an amendment is questionable. However, the Supreme Court can declare an amendment unconstitutional if it goes against the constitutional value of equality or the constitutional goal of advancing the common good.
