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06/28/2018

The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional
Mike Rappaport

In a recent post, I discussed the movement in much of the world to declare constitutional amendments that are otherwise procedurally valid to be unconstitutional on the ground that they violate implicit or extra constitutional norms. Here I want to discuss why, in the American context and perhaps in other countries, that is such a bad idea.

In the American context, declaring an amendment that is otherwise valid – such as an amendment banning flag burning or overturning Citizens United’s First Amendment protections for corporations – to be unconstitutional would be extremely problematic. If the Supreme Court made such a declaration, an amendment that had passed the very strict constitutional amendment process – and therefore was supported by a significant consensus of the American people – would have been blocked by the extra-constitutional action of the Court. There would be no justification for such action and it is likely to be harmful, since the constitutional amendment process is a better judge of what constitutional provisions should exist than the Court.

But declaring some constitutional amendments to be unconstitutional would also be problematic because it would further obstruct the constitutional amendment process. The reason that the constitutional amendment process no longer works in America – there has not been a new constitutional amendment enacted since the 26th Amendment in 1971* – is largely the fault of nonoriginalism, for several reasons. First, a constitutional amendment may take a long time to pass, because it requires a consensus of the American people to enact it. But such a consensus may take a long time to develop. If a nonoriginalist Supreme Court updates the constitution through “interpretation” every time it deems there to be a significant problem with the Constitution, there will never be an opportunity for a consensus to form and a constitutional amendment to pass.

Second, a nonoriginalist Supreme Court cannot be trusted to enforce the constitutional amendments that are written. They will ignore the original meaning and enforce a different meaning than the one enacted.  This means that the incentive to pass a constitutional amendment is greatly reduced by nonoriginalism.

In my view, these two reasons explain why the Equal Rights Amendment, which seemed to have so much appeal, was not able to secure ratification.

Declaring constitutional amendments unconstitutional for violating extra-constitutional norms would put a further (perhaps) redundant nail in the coffin of constitutional amendments. It would further reduce the incentives of the country to pursue constitutional amendments with which the Supreme Court disagrees, because there would now be a chance – perhaps a significant chance – that the Supreme Court would declare them unconstitutional. Why put in the enormous effort to pass an amendment, when it is better to try to pack the court?

Happily, there is, at present, little chance that the Supreme Court would declare a validly passed constitutional amendment unconstitutional based on extra-constitutional norms. But it is significant that this occurs throughout the world. For many of the countries, this arrangement may be as problematic as it would be in the United States. And if nonoriginalism makes further progress in the United States, it is quite possible that the Court might one day decide to take this type of action.

* The 27th Amendment was first proposed in 1789 and therefore does not really count.