Simone Lawson
The concept of an unconstitutional amendment has been around since at least the 1890s. An amendment may be deemed invalid if it conflicts with a constitutional or extra-constitutional norm, value, and/or principle. The US Constitution sets high standards for amendments, but places few limits on their content. Article V of the Constitution prohibits amendments that deprive a state of equal suffrage in the Senate without its consent, enshrining the partly federal and partly national structure of the bicameral Congress. The odds of repealing an amendment are extremely slim, with only one amendment, the 18th Amendment, having been repealed by the states.
| Characteristics | Values |
|---|---|
| Conflicting with constitutional or extra-constitutional norms, values, and/or principles | e.g. an amendment barring most political speech, conflicting with the First Amendment |
| Contradicting the commonly cited constitutional value of equality | e.g. an amendment that denies the human dignity of non-whites |
| Rendering the rest of the Constitution meaningless | e.g. an amendment barring most political speech |
| Not harmonious with the body of the Constitution | e.g. an amendment converting a democratic republican government into an aristocracy or monarchy |
| Depriving a state of equal suffrage in the Senate without its consent | e.g. Article V prohibits amending the Constitution so as to deprive states of equal suffrage |
| Affecting the first and fourth clauses in the ninth section of the first article | e.g. Article V prohibits amendments prior to 1808 affecting these clauses |
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What You'll Learn
Amendments that conflict with constitutional norms, values, and principles
The concept of an unconstitutional constitutional amendment is based on the idea that even a properly ratified amendment can be deemed unconstitutional if it conflicts with constitutional norms, values, or principles. This doctrine has been supported by various legal scholars and adopted by courts in different countries. While no amendment to the US Constitution has been ruled unconstitutional, there have been debates and proposals to repeal certain amendments, such as the Second Amendment, which guarantees the right to bear arms.
The US Constitution sets high standards for amendments but places few limits on their content. However, certain subjects are considered unamendable due to the structure of the bicameral Congress and the Connecticut Compromise. Article V of the Constitution prohibits amendments that would deprive a state of equal suffrage in the Senate without its consent. This provision protects the interests of smaller states against those of larger ones.
Legal scholars have argued that amendments must be harmonious with the existing Constitution and cannot render it unrecognizable. For example, an amendment that abolishes one or more US states or bars most political speech would be considered unconstitutional as it would conflict with the First Amendment and other constitutional principles. Similarly, an amendment that promotes white supremacy and denies the human dignity of non-whites would conflict with the commonly cited constitutional value of equality and the goal of advancing the common good.
The possibility of unconstitutional amendments highlights the delicate balance between the power to amend and the need to uphold the fundamental principles of the Constitution. While the US Supreme Court's ability to overturn constitutional amendments is questionable, the discussion around repealing or amending certain provisions showcases the dynamic nature of constitutional interpretation and the ongoing efforts to ensure that amendments align with evolving societal norms and values.
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Amendments that deprive a state of equal suffrage in the Senate without its consent
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". This means that amendments that deprive a state of equal suffrage in the Senate without its consent are invalid.
The US Constitution sets high standards for amendments but places few limits on the content of amendments. The last amendment to be drafted was the Twenty-sixth in 1971, and the last to be adopted was the Twenty-seventh in 1992, which was originally drafted in 1789 but failed ratification and was forgotten. No amendment to the Constitution has ever been ruled unconstitutional by a court.
The idea of an unconstitutional constitutional amendment has been around since at least the 1890s. Former Michigan Supreme Court Chief Justice Thomas M. Cooley embraced the idea in 1893, insisting that amendments "cannot be revolutionary; they must be harmonious with the body of the instrument". US law professor Arthur Machen argued in 1910 that the Fifteenth Amendment might be unconstitutional.
In a 1991 law review article, United States law professor Richard George Wright argued that an amendment "cannot amend if it renders a constitution unrecognizable" and can only be valid as part of a new constitution. Wright also agreed with US law professor Walter F. Murphy that an amendment that denies the human dignity of non-whites would be unconstitutional. While it might have been compatible with the pre-Civil War Constitution, it conflicts with the commonly cited constitutional value of equality and the constitutional goal of advancing the common good.
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Amendments that abolish one or more US states
The US Constitution's Article V states that no amendment can deprive a state of equal suffrage in the Senate without its consent. This means that amendments that abolish one or more US states are not possible, as they would violate the Constitution's guarantee of equal representation for each state in the Senate.
The US Constitution is codified, and while amendments are rare, the process for proposing and ratifying them is outlined in Article V. 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. Three-quarters of the states must then vote to ratify the amendment for it to become part of the Constitution.
While no amendment to the Constitution has ever been ruled unconstitutional by a court, some legal scholars argue that certain amendments could be deemed unconstitutional if they conflict with constitutional norms, values, or principles. For example, an amendment that bars most political speech would be unconstitutional as it would conflict with the First Amendment and render the rest of the Constitution meaningless. Similarly, an amendment that enshrines white supremacy and denies the human dignity of non-whites would conflict with the commonly cited constitutional value of equality and the goal of advancing the common good.
However, the ability of the Supreme Court to overturn any constitutional amendment is questionable. The idea of an unconstitutional amendment has been around since at least the 1890s, with former Michigan Supreme Court Chief Justice Thomas M. Cooley arguing that amendments must be harmonious with the body of the Constitution and cannot be revolutionary.
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Amendments that bar most political speech
The concept of an “unconstitutional constitutional amendment” has been acknowledged by legal scholars and academics since at least the 1890s. This concept refers to the idea that even a properly ratified and passed constitutional amendment can be deemed unconstitutional if it conflicts with a constitutional norm, value, and/or principle.
One example of an amendment that would likely be deemed invalid is one that bars most political speech. While there has been no amendment to the US Constitution ruled unconstitutional by a court, legal scholars like Yale law professor Akhil Amar and United States law professor Richard George Wright argue that an amendment barring political speech would be unworkable and unconstitutional. Such an amendment would conflict with the First Amendment, which protects freedom of speech, and it would also render much of the rest of the Constitution meaningless.
The First Amendment, ratified on December 15, 1791, is commonly recognized for its protection of the freedom of speech, religion, the press, and the right to assemble and petition the government. The official text of the amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The right to assemble has been interpreted by modern Supreme Courts as an expansion of the core freedom of expression, allowing groups, rather than just individuals, to exercise freedom of speech.
The First Amendment also includes the Establishment Clause, which prohibits the federal government from establishing an official religion. This clause was influenced by the religious diversity of colonial America, where religious leaders often held political influence rivaling that of appointed government officials. Thus, the protection of freedom of speech and freedom of religion are fundamental principles of the US Constitution, and any amendment barring political speech would directly conflict with these established rights and values.
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Amendments that deny human dignity
The concept of an unconstitutional constitutional amendment has existed since at least the 1890s. While no amendment to the US Constitution has ever been ruled unconstitutional by a court, legal scholars have supported the possibility of their existence.
An amendment that denies human dignity would likely fall under this category of unconstitutional amendments. For example, an amendment that enshrines white supremacy and denies the human dignity of non-whites would be unconstitutional, as it conflicts with the commonly cited constitutional value of equality and the constitutional goal of advancing the common good.
Additionally, the Fourteenth Amendment to the US Constitution, passed by Congress on June 13, 1866, and ratified on July 9, 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people. It states that:
> "All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This amendment guarantees equal civil and legal rights to all citizens, regardless of race, and specifically protects the rights and dignity of formerly enslaved people.
Furthermore, the Montana Constitution also includes a provision for individual dignity in its Bill of Rights. Section 4 of Article II states:
> "The dignity of the human being is inviolable. No person shall be denied the equal protection of the law, nor be discriminated against in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas, by any person, firm, corporation, or institution; or by the state, its agencies or subdivision."
This provision ensures that all individuals in Montana are protected from discrimination and are able to pursue their inalienable rights without any infringement upon their dignity.
In conclusion, while there is no explicit right to individual dignity in the US Constitution, the Fourteenth Amendment and the interpretations of legal scholars suggest that amendments denying human dignity would be unconstitutional. The Montana Constitution further reinforces the protection of individual dignity, ensuring that it is respected and upheld.
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Frequently asked questions
An unconstitutional constitutional amendment is the concept that even a properly ratified and passed amendment can be unconstitutional if it conflicts with a constitutional norm, value, or principle.
Amendments that bar most political speech, deny human dignity to non-whites, or deprive a state of equal suffrage in the Senate without its consent would be deemed invalid.
The 18th Amendment, which established Prohibition, was repealed by the 21st Amendment in 1933.
