Can the Constitution be unconstitutional?
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Okay, so I wasn’t exactly honest with that question. The real question is: can a Constitutional Amendment be unconstitutional? (But since a Constitutional amendment becomes the Constitutional, it wasn’t exactly dishonest, either.)
Now this is a purely hypothetical question, because in most cases, there wouldn’t be an amendment that also didn’t repeal a prior amendment that it contradicts. But let us assume there is no such provision.
So can Congress (or the voters of a State through a referendum or the state legislature depending on where you live) pass a Constitutional amendment that is unconstitutional?
The answer seems simple enough: No. But why? What is to stop the voters of a State like CT from voting for a Constitutional convention (which will be on our ballots Nov. 4), at which they get passed a voter referendum law, which they then in turn use to amend the Constitution to prohibit..say…same-sex marriages?
There’s nothing explicit in the CT Constitution about marriage being between a man and a woman, but CT does have the equivalent of the equal protection clause (Article I, Section 20). Assuming that sexual orientation is a protected classification like race, gender, would such a Constitutional Amendment banning same-sex marriage be in violation of Article 1, section 20? Who would get to decide that?
Can the Supreme Court of CT (or SCOTUS) decide that one State constitutional amendment violates another provision of that same constitution?
If no Court can rule that the Constitution is unconstitutional, then what is the interplay between those amendments and/or provisions that are contradictory and what is the state of the law between the passage of any such amendment and the eventual further amendment repealing either of those provisions?
Courts in the U.S. haven’t dealt with this issue yet (and I suspect won’t have to), but other countries have (holding that the government is restricted in its ability to alter the Constitution).
Any ideas? Thoughts?
Further reading:
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I might distinguish two cases
1) Some constitutions (germany comes to mind, as does our article V with respect to senatorial representation) are explicitly limited in how they may be amended.
Hence, you couldn’t just amend the constitution to give Maine three senators–that would be unconstitutional under article V. Instead, you’d have to amend article V first, and then amend article I.
2) In most other cases, just like statutes, it’s a courtesy to note when you repeal something, but you don’t have to. (see Sixteenth amendment-implicitly overruling Art. I S9 “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”)
If the two provisions cannot be read together (and you know courts will try to read them consistently), I think we’d presume that the amendment overruled the earlier provision, and then controls.
I agree with John. A rational person (not to say all judges are rational) would assume that a later (in time) amendment was made with a full and complete understanding of the constitution as it stood when the amendment was being discussed. Hence, any conflict between that later amendment and an earlier one would be resolved in favor of the later amendment, even if that later amendment did not specifically overrule the earlier amendment. In political theory the term used is “binding”. Namely, a prior act of a legislature (or, in this case of the citizen’s themselves) can never bind a current or future legislature. The basis for this theory is simply that power is always exercised in the present with full knowledge of the past but never with full knowledge of the future.
However, this would only apply to a constitution with in the state. I think it’s a very interesting question as to what would happen if Scotus got involved. It’s argued that when the states were accepted into the Union, the Federal government (as a proxy for the other states themselves) accepted them on the condition that they were obligated to be bound by the Federal constitution when it conflicted with the state’s own constitution (Utah is a good example of this). However, the exact parameters of this theory have never been fully explored. For example, given that marriage is traditionally left to the states, I find it unlikely that Scotus would rule any state constitutional change in that regard a violation of the federal constitution. But I could imagine situations (for example, the Commerce clause) where Scotus would rule a validly passed state constitutional amendment federally unconstitutional. OTOH, if there was a federal constitutional amendment that defined marriage in a certain way, it would be an open question as to if and how that would apply to the states via the 14th amendment to the US Constitution.
BTW, I just went and read your link to the SSRN article. OK. That guy is dumb. I mean, it’s really sad that this is what’s being taught in law school. The problem with his answer is that it’s completely disconnected from political theory. After all, our from of government is first and foremost not a legal system, it’s a political system, a way of regulating the community, the polis. I totally disagree with the notion that Scotus decisions are *binding* on the other branches of government. OTOH, I think that the structure of the constitution itself counsels for a comity between the branches. It is a referral to this comity that is the reason why the court doesn’t come back an yell “Dred Scott” again. Scotus would lose all of it’s good will and be seen as a tyrannical institution *as a political matter* if it yelled “Dred Scott” yet again.
At the end of the day, Scotus power comes from the same location as all power: it’s legitimacy as perceived by the people seen as a whole (the polis). Given that a civil war had just been fought over these issues, only some type of insane freak would have come back and yelled “Dred Scott” once again.
Okay so the Same Sex Marriage Law passed in California was found to violate the Constitution of California.
So now Proposition 8 just passed and the citizens of California are adding a Constitutional Amendment stating the exact same thing that the unconstitutional law did.
Thus your answer is now wrong.
What CA found unconstitutional in law due to the equal protection clause they are adding as a constitutional amendment which now conflicts with another part of the CA Constitution.