Can a constitutional amendment be unconstitutional?

[goaded]

Talking about the US constitution at the moment, but it's probably general for any constitution that can lawfully be amended.

"Thirty-three amendments to the Constitution of the United States have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of those, having been ratified by the requisite number of states, are part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. The 13th, 14th, and 15th amendments are collectively known as the Reconstruction Amendments."

The 18th Amendment is the only one to have been repealed (by the 21st Amendment).

The first Amendment

No. A ratified amendment is part of the constitution.

Yes. (Please tell us how part of the constitution can be unconstitutional.)

Don't know/see results

[msc545]

In U. S. constitutional law, the short answer is no — once an amendment has been properly ratified under Article V of the Constitution, it becomes part of the Constitution and, by definition, cannot be “unconstitutional” in the usual sense.

Here’s why -

Amendments are the highest form of U. S. law. The Constitution is the supreme law of the land (Supremacy Clause, Article VI). An amendment modifies or adds to the Constitution itself, so there is no “higher” domestic law to judge it against.
The Supreme Court can’t strike down a valid amendment on constitutional grounds, because the amendment is the Constitution. For example, the 18th Amendment (Prohibition) was unpopular and later repealed, but it was never declared unconstitutional — instead, the 21st Amendment repealed it.
The only “invalid” amendment would be one that failed the Article V process — e. g., if it wasn’t approved by two-thirds of both Houses of Congress and three-fourths of the states (or via a convention process). If the procedural requirements weren’t met, the courts could potentially rule it never became valid in the first place.
Theoretically, some scholars debate limits — such as whether an amendment could violate fundamental principles like equal representation of states in the Senate (which Article V itself says cannot be changed without unanimous consent of the states affected). But these limits are built into Article V itself, not from outside judicial review.
So the only way to change or remove an amendment that has been validly ratified is:

Ratify another amendment that repeals or changes it (as happened with the 21st repealing the 18th).
Convince the courts it was never validly ratified in the first place.

[goaded]

Thank you. Obvious, isn't it!

[WindAtMyBack]

"The Constitution is the supreme law of the land"

This isn't really true. Or at least it's misleading. That's because the supremacy clause is conditional and restrictive. The US Supreme Court simply doesn't have jurisdiction over everything. The purpose of the 10th Amendment was to make this clear. The role of the federal government is restricted, and the role of the SC has the same restriction.

[goaded]

@WindAtMyBack Well, maybe (could you give an example, perhaps?), but an amendment could enumerate more powers to Congress.

[WindAtMyBack]

I think if an amendment conflicts with an existing provision in the Constitution, that should be explicitly addressed rather than allowing a conflict to exist.

I think you also can't mess with some of the most basic parts of the Constitution that would essentially override the Constitution itself. For example to dissolve the federation, or the basic structure of the federal government or states.

Is it unconstitutional to throw out the constitution?

[goaded]

You most certainly can "mess with some of the most basic parts of the Constitution" and "override the Constitution itself", that's the whole point of making the constitution amendable. It means you never need a violent revolution, so revolutions are, by definition, unconstitutional. You only get to rise up against governments who take away your right to vote, and they're breaking the law.

You could propose an amendment to make Donald Trump and his children hereditary Kings of the United States. It wouldn't get ratified because democracy. But if it did, it would be constitutional.

An amendment to explicitly state that corporations are not people and have no free speech rights and nor does money count as free speech might have a better chance. Because it would be amazingly popular with voters. Just not the ones who fund politicians or benefit from selling campaign adverts.

[katiesmuff]

Seems to be a whole new era now where nothing is forever as presently our fascist nazi leader has pretty much put the entire constitution on a back burner and what is worse is the millions and millions of cowardly sheep who are just sitting by pissing and moaning about it.

[goaded]

That's not as bad as the people who are enthusiastically embracing it.

[katiesmuff]

Now that the Treasury Dept has in simple English spelled out how these huge tariffs really work on a TV interview and people begin to see why a $100 tomato now costs $3.00 that theater of fans will begin to deplete. It was fun to watch as the guy squirmed and wriggled around trying to avoid answering of Who Actually Writes The Tariff Check and he finally admitted the receiving end of the shipments which is US!

[msmissydc]

Depends on priorities. Generally no. Part of something can not be not part of it. But a new part could in theory contradict an older already existing part and therefore against what a constituation is saying.

[goaded]

But then the new part supersedes the old one, unless it's incredibly badly written. The 21st Amendment nullified the 18th. The 18th is still there, just no longer important. The same could happen to any previous amendment, or even the original text.

[OneViewpoint]

Theoretically it could happen if a new amendment was in conflict with one or more parts of the Constitution and that wasn't addressed in the amendment process. But the probability is low because any amendment would also theoretically be scrutinized to hell and back by all sides during the process. It would represent a monumental screw up. But hey, the current House and Senate can probably make it happen.

[goaded]

It requires a huge number of states, as well. At least these days, the copying will be perfect and commas won't be added or dropped at a whim.

[DCVsMarvel2]

No, but they can be rewritten. We literally saw "abolition of alcohol" overturned

[goaded]

Yes, by another amendment.

[NaultD]

Like you said it took another amendment to counter another amendment by repealing it.

[dustybiker2]

Some think you can just ignore them irregardless.

[OddBeMe]

Yes, technically. Prohibition was an amendment and ended with another amendment. So logically it was stricken from the constitution... meaning technically "unconstitutional".

[goaded]

Then it wasn't part of the constitution any more.

[OddBeMe]

Its still an amendment. Just defunct. I think its best to define what "unconstitutional" means. If you want to just say "breaks a rule laid out in the comsitution", sure I agree.

But... could Trump ban all alcohol citing Prohibition like he's doing with the Enemy Aliens Act? Scotus would have to decide

[goaded]

No, he couldn't because the later amendment revoked the former.

[OddBeMe]

Well then scouts could rule the later amendment unconstitutional like they did with Roe

[goaded]

Roe was only a SCOTUS decision, not even a law, let alone a constitutional amendment. It should have been enshrined into law asap, but that probably wouldn't have been possible. It should be if there's ever a government for the people again, also same-sex marriage, contraception, etc.

[Dongie]

If it would be unconstitutional it wouldn't have made the cut, now would it?

[goaded]

Then it wouldn't be a constitutional amendment, would it? (Are you the lone Yes vote?)

[Dongie]

I doubt it. To which are you referring? Is it one that's argued over? I guess that can be many.

[goaded]

It doesn't matter what amendment it is, existing, replaced, or a vague proposal, once an amendment is ratified, it's part of the constitution and then inescapably constitutional. No?

(If it wasn't your vote, it's probably a cowardly one from the person who claimed "Such an amendment would be unconstitutional".)

In some respects, every amendment is unconstitutional until it's ratified, because, for example, it was unconstitutional to insist that a president only serve two terms, until it was.