Unconstitutional Amendments

I keep reading about the so-called concept of unconstitutional amendments in the US Constitution, the most frequently seen being 14th and 17th. On surface it just seems silly. But it does encourage a thoughtful discussion on the supreme law of United States.

What do you think about this?

There's no such thing as an "Unconstitutional Amendment"

Amendments are direct changes to the constitution itself.

An unconstitutional amendment is when someone gets mad about an amendment they don't approve of, and try to split hairs until they can find some warped logic to explain why the amendment itself is guilty of being unconstitutional.

That won't stop Constitution nuts from claiming its possible, though.

What about an amendment that generates an internal contradiction within the constitution?

Amendments can't be unconstitutional. They are changing the Constitution in a legal way and there is no higher law peventing them from doing this. Of course they are not always compatible with the non-amended content of the Constitution, but that's because they are... well, changes.

That's more of a poor wording choice. You can make amendments to remove others though.

Well, theoretically there can be unconstitutional amendments to the US constitution. If they somehow don't take the proper process and yet are somehow enshrined as law, for example. As said, as theoretical possibility.

You can also have amendments to state constitutions that violate the federal constitution.

And vice versa, only federal trumps state, so there's a pecking order involved. Doesn't keep people from crying about it though.

Isn't this an oxymoron?

EDIT: I take it back and state it with certainty; this is an oxymoron.

edited 28th Jun '11 10:29:55 AM by GameChainsaw

Well, the arguments for 14th and 17th is that they were ratified improperly. The 14th because the state counts were skewed (due to some Confederate states not being readmitted yet), making the 3/4 ratification supposedly not completed, and the 17th because it violates Article V, stating that it deprives equal suffrage of the states in the Senate due to direct election. Not that I would agree with it.

How was the upper house assembled before amendment 17?

Also... even just seeing this summary... those two amendments are pretty hefty stuff... I mean, 14 is basically the rights of the citizen... wait, why would the republicans of all people have an issue with this?! Are the Democrats going after this one or something?

Have the republicans read their party history recently? Last time I checked they were all about the "freedom for the individual" thing.

Before, the federal Senate was chosen by state legislatures, which are in turn chosen by the people of the respective states. So it's indirect, and it depended on acknowledging the role of the state government. Now, the people in the state just elect both the state legislatures and the senators for the whole state (and separately). This takes away state powers.

As for the 14th, this shows up a lot.

Republicans have moved their foundations since the Civil War. Now THEY want states' rights.

What's the 14th and 17th? I know the 1st is Freedom of Speech, 2nd is Bear Arms, 3rd is the army barracks thing, and the 5th is to remain silent. How many amendments are there?

edited 28th Jun '11 2:22:34 PM by Inhopelessguy

14th is a Civil War Amendment, the relevant clause is:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, 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.

The other sections are irrelevant now. 17th provides for direct election of senators.

And there are 27, but the first 10 are the Bill of Rights, and were adopted at once. The most recent is that Congress can't change its own pay during its term.

edited 28th Jun '11 2:25:14 PM by blueharp

Twenty-seven? That's a lot. How many do you need?

You lot don't even have a written constitution, so one document with 27 Amendments seems pretty efficient.

You think that's a lot, but there are states with considerably more, the average is 115.

It's really more important to look at the reasons, not just the raw numbers.

Alabama has over 800. Most of them would be handled in statutory law in any other place, but they decided to do things rather...unusually, to the point where taxes in some cities have to be in the State Constitution.

edited 28th Jun '11 2:33:13 PM by blueharp

[1]

We do have one.

It's just spread over a thousand years of documents.

How is a British lawyer or judge supposed to make sense of this?

We have a documented bill of rights that are in some fancy law book. We also follow the Human Rights Bill of The Great Supranation, which supercede the ones at national level. Which to no end rages up the stupid Europhobes.

edited 28th Jun '11 4:00:16 PM by Inhopelessguy

Over the course of 222 years mind you. 17 of them took 222 years to enact. The average time between amendments is over a decade each discounting the first ten.

Britain doesn't have a formal constitution in comparison. Just piles of accumulated laws that are only really held because the royal family doesn't feel like having another civil war and the Parliament is spineless preferring to take your liberties the subtle way. Apart from the Magna Carta, there's no document du jure that formally spells out what your government can and cannot do. It basically makes it up as it goes along.

The United States knew better than to go that route over 200 years ago. (Especially since the Articles of Confederation had proven itself rather toothless and ineffective at everything.)

edited 28th Jun '11 4:24:06 PM by MajorTom