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Unconstitutional Constitutional Amendments

Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue:

Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan— have either asserted or exercised the power to invalidate a constitutional amendment. Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule. There are relatively few exceptions to the global chorus of voices in support of the extraordinary judicial power to invalidate constitutional amendments. The dearth of contrary views reflects the normalization of the phenomenon Ran Hirschl has identified as the “judicialization of mega-politics,” a now-common phrase referring to the most important matters of political significance that constitute, define and divide polities—and that are now often adjudicated by courts. National courts today decide a host of decidedly political questions: the winner of presidential elections, the legitimacy of political parties, and the self-determination of a people. Against this backdrop, invalidating a constitutional amendment is just par for the course [emphasis added].

Different constitutional systems throughout the world follow different principles – both as to judicial implementation and as to their framing. (For the argument that seemingly nonoriginalist methods in some foreign constitutions might actually be consistent with originalism, see here.) But to understand how outrageous such “unconstitutional” constitutional amendments might be under at least certain systems, let’s focus on the U.S.

The U.S. Constitution does prohibit certain constitutional amendments. For example, if an amendment proposed by Congress does not receive two-thirds of each house of Congress or is not ratified by three-quarters of the states, then it is invalid. Apart from such procedural infirmities, an amendment might be deemed substantively unconstitutional if it deprived a state of its equal voting rights in the Senate without its consent (which is explicitly protected by Article V of the Constitution).

But let’s imagine that an amendment passed that complied with the textual provisions of the Constitution, but a court declared it unconstitutional as inconsistent with the “underlying principles” of the Constitution or its design.  For example, imagine that congressional term limits were enacted, but the Supreme Court said that it was unconstitutional because it was inconsistent with the democratic principles of the Constitution.

Or imagine that the Democrats enacted an amendment to overturn Citizens United, but then the Supreme Court declared it unconstitutional on the ground that it was inconsistent with the First Amendment. This might seem like a strange position for liberal nonoriginalists, but liberal law professors have over the years argued that amendments inconsistent with the First Amendment might be unconstitutional – and thus the only thing strange here is that a traditional liberal position would now be used to combat a liberal initiative.

In my next post, I will discuss the harm that such extra constitutional actions can have on a constitution.

Reader Discussion

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on June 19, 2018 at 10:47:40 am

As for term limits, the Court did not find them inconsistent with democratic principles when the President was term limited by amendment.

An amendment becomes a part of the Constitution co-equal in status with all other provisions. If the people ratify an amendment by the necessary supermajority, then it reflects an exercise of sovereignty by the people and the Court could not overrule the people'e exercise of sovereignty. The Court would have to find a way to reconcile via "legal reasoning" (which we are all assured is a highly specialized type of reasoning that only trained experts can do) the conflicts with other parts of the Constitution, which is what it does all the time anyway. This doesn't mean that the Court would not, via its interpretive legerdemain, render such an amendment which it didn't like a dead letter in practice (sort of like "privileges and immunities of citizens of the United States"). But it could hardly prevent the amendment from becoming a part of the Constitution. As for liberal law professors (I assume you mean Left-liberal, not classical liberal), well, I see no reason to accord their expediency-driven views any weight on this matter. A speculative, specious, sophistical Rube Goldberg-style argument cannot possibly trump the political theory on which this nation was founded and its Constitution enacted.

This feels like a trick question.

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QET
on June 19, 2018 at 12:44:49 pm

Frankly the court has been to skitish to decide actual procedural problems. Looking at the 13th and 14th amendments. Its almost impossible that they were both ratified correctly. Either the states were not in the union (in which case the 13th was not ratified when claimed) or they were not (in which case the 14th was not properly). And yet the courts refuse to even consider these procedural arguments. Do we even have a constitution if its terms are not respected?

If the court would have the gunption to say one of these was not properly ratified (procedurally), I’m confident we can pass a new amendment with the same text right away.

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Devin Watkins
on June 19, 2018 at 12:46:12 pm

Opps drop that second not.

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Devin Watkins
on June 19, 2018 at 12:46:40 pm

I recall a Twitter movement #Repealthe19th in 2016 when polling revealed that more women were intending to vote for Clinton than for Trump. Cute strawman you set up there, I might add. I guess any anti-corruption laws are bad, even the ones set up in that liberal state of Montana by your reading. Along with Citizens United, I suppose it would be wrong to insist on transparency, even though the original decision for Citizens United suggested that transparency would be a good thing. But I suppose the donor class is more important than the rights of the voters to know who's trying to bribe them.

But of course anything done to keep the donor class from continuing to hose off the majority of taxpayer money must be wrong.

And I do love how you imply that 'doing anything about Citizens United must be evil, and therefore the left is evil even though they haven't actually done anything about it yet'. But of course the right of rich people to take over the government must not be abridged. Makes me kind of wonder who *your* sponsors are.

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excessivelyperky
on June 19, 2018 at 15:40:52 pm

It would appear that excessively perky is a) quite capable of regurgitating the usual political pap oroffered by the commentariat, b) asserts an express desire for 'transparency", c) hates the *rich* (defined as what exactly?), d) believes that a policy preference of some number of Justices should trump the Bill of Rights (except of course when Labor Unions and Leftist foundations donate OODLES of money to Democrat candidates, and is manifestly unable OR UNWILLING to acknowledge that the DONOR CLASS is primarily LEFT WING as are almost the entirety of the highest income counties in the United States.

So Yes, you perky thing (does that mean overly carbonated and effervescent?) let us prevent the donot class from exercising such outsize influence on the poor stupid uneducated miscreants formally known as the citizenry -

BUT

let us properly identify them. We may start with the typical little "S...'s" - Soros, Steyer, SEIU - and go on from there.

In closing let us all offer support to this perky creature but lets us also offer a pair of proper eyewear so as to allow a clear view of the playing field!

also, a bib so as to clean up the regurgitated, partly digested pap provided by perky's mentors.

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gargamel rules smurfs
on June 19, 2018 at 15:44:21 pm

Correction:

1st word in 2nd sentence should read: proffered

"donot" should read "donor"

One may substitute "formerly" for formally - it may be more accurate.

Now back to the boiling cauldron of Smurfs. Yummy!!!!

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gargamel rules smurfs
on June 20, 2018 at 12:52:09 pm

I am perfectly capable of speaking my own mind, thank you. But I suppose some enjoy fawning on the rich in hopes that a few dollar will drop their way. Hint: they won't. Personal insults always substitute for reasoned discourse on the role of money in our political system--and the SCOTUS did say that transparency would be a good thing in their decision on Citizens United, had you ever actually read it.

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excessivelyperky
on June 20, 2018 at 18:41:16 pm

"and the SCOTUS did say that transparency would be a good thing in their decision on Citizens United, had you ever actually read it."

Had you ever read (objectively) my comment on transparency. No claim was made denying a) the importance of transparency nor b) that SCOTUS issued such a 'policy" opinion.

My point was simply that an individual jurists POLICY PREFERENCE is not sufficient to overcome constitutional 1st amendment protections no matter how irksome some may find this *arcane* text. simple as that!!!

And you are correct - eyewear may not be the appropriate recommendation!

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gargamel rules smurfs
on June 21, 2018 at 08:39:40 am

BTW:

As to the donor class, were you thinking of Mike Bloomberg?

https://hotair.com/archives/2018/06/20/mike-bloomberg-dump-80-million-try-buy-house-democrats/

wherein a rich fellow donates oodles of money to elect his leftist friends.

Gee, I wonder why bloomberg is never mentioned by Lefties when talking about Big donors (Ok, so he is short...)

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gargamel rules smurfs
on August 23, 2019 at 02:07:18 am

Why exactly can't the court declare that its power of judicial review is so broad that it allows the court to nullify even properly passed and properly ratified US Constitutional Amendments, though? I mean, the US Constitution does contain some things that are explicitly unamendable and I don't see why exactly a living constitutionalist can't read implicit unamendability into other parts of the US Constitution if that's what he or she genuinely want to do. Considering that some living constitutionalists argue in favor of their theory due to the belief that their theory produces better outcomes, I don't see why exactly the same logic cannot apply to parts of the US Constitution--as in, that sometimes striking down a part of the US Constitution as unconstitutional will produce a better outcome than keeping this part in place and that thus this part of the US Constitution should indeed be struck down by the courts.

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Daniel
on August 23, 2019 at 02:09:46 am

Like it or not, but (at least in a hypothetical/theoretical sense) sometimes striking down a part of the US Constitution might be the only way to preserve the US Constitution's legitimacy. For instance, if a new US Constitutional Amendment would have been properly passed and properly ratified that would have completely eliminated the US constitutional amendment process, one could argue that striking down this argument would be the only way to preserve the US Constitution's legitimacy by ensuring that it will continue to be capable of being changed/amended.

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Daniel

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.