But with the Congress made up of people elected from the states, doesn’t that mean the states (ie, the states’ electorate) are effectively in control anyway? Or is this just an attempt at an end around specific legislation by Congress the supporters don’t like?
The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.
Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.
Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.
[…]
The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.
#61
Sorry to disappoint you, but it is that simple. A clause in the Constitution whose language is more specific to the case at hand trumps a more general clause in pretty much every situation except the 10th Amendment (the SC apparently doesn’t seem to care much about that one). If two amendments **both** **directly** apply to the same case (and we are not talking about the first 10 amendments), then the newer amendment will trump. There just aren’t that many scenarios where that kind of overlap happens outside of an amendment changing the law of a previous amendment (e.g. Prohibition amendment) or part of the main body of the Constitution. Be my guest to find exceptions that do not involve the 10th Amendment. To find an exception you would need to do the following:
1. Find a case where multiple clauses in the Constitution apply that does not involve the 10th Amendment
2. The one that has language that is more directly applicable to the case at hand is discarded in favor of the more general one.
Go for it; we’ll wait. The key is finding situations where multiple clauses apply. What you will find in the decisions is some argument as to why the more specific clause does not apply in the given case which means only the general clause applies. To prove your argument, you need to find a case where the judges agree that the more specific *and* the more general both apply and they discard the specific clause for some reason.
As to whether terms that are ignored/nullified are still “constitutional” as opposed to being “in” the constitutional that is definitional or interpretational.
No, They are not the same. If something is unconstitutional, it is rejected outright as fundamentally unlawful. That is entirely different than saying you have given clause that never seems to apply because it is always trumped by something else in the Constitution. It simply means that clause has no bearing on constitutionality.
Thomas–you are being very dense. You are picking only very narrow and specific types of interpretational conflicts. There are others.
In the main, you address what has historically happened–what the Const is now. The subject however also includes what might happen in the future.
Lets say there is a new amendment saying that there is no freedom of speech on the internet, or no right to privacy, or no need against unreasonable searches and seizures of information etc. Would that hold? I’d say that would be totally debateable with the long history and dedication of our country to our inalienable rights.
Only calcified minds can’t do the gymnastics.
#64
This is definitely one of your dumber moments. You simply do not grasp the scope of Amendments. An Amendment could be passed that completely banned free speech entirely. Granted, the probability of such an Amendment actually being ratified are extremely remote but that is orthogonal to whether it possible to alter any part of the Constitution. Amendments change the fundamental meaning and makeup of “constitutionality” . If an Amendment was passed that banned free speech on the Internet, then that Amendment would completely and entirely trump the First Amendment with respect to the free speech in that arena (and probably others). The Supreme Court would be obligated to rule that laws where speech was restricted or controlled on the Internet were in fact constitutional because the Constitution specifically enables it. Precedent did not have this modified version of the Constitution with which to evaluate constitutionality. Slavery and discrimination were baked into the original Constitution for almost 100 years. An Amendment made it as if those parts were never written and those parts are completely ignored now.
You seem to be under the delusion that there are parts of the Constitution that are sacrosanct from the Amendment process. They are not. An Amendment can change any part of the Constitution itself no matter the topic. Whether there is a reasonable probability that certain parts will in fact be changed is entirely separate from whether they can be changed via an Amendment. Hell, the States could convene a Constitutional convention and throw out the entire Constitution and write a new one and in the process completely change the rules by which one judges constitutionality.
#3 cvquesty said:
“””
Umm.. Hello, 10th Amendment? They already have this power. They can literally go tell the government to “pound sand” on any topic at all as per the 10th amendment.
It’s a shame that no one appears to know the constitution any more.
“””
For the win!
The repeal amendment smells like your typical Republican ploy to snatch defeat from the jaws of victory. Their amendment would, of course, fail and then they would all say “Gosh, we failed! But that settles it, the states have to submit even when the Feds violate the constitution (with the Supreme Court colluding).” And the f__king Democrats can be counted on to do their part, saying that the repeal amendment is all about bringing back slavery.
#11 Uncle Dave said:
”’
#4: Both of them already are.
”’
Oh, Snap!
Thomas–I see “your” issue: you think words/amendments can only be interpreted/enforced one way. You think the Supreme’s will read words/intent/meaning the same way that you or I might both agree was meant. That is not the case. Isn’t that true right now about the extent/meaning/clear intent of the Commerce Clause? How can forcing people to buy Health Insurance be an instance of regulating Commerce “among the various States?” Common sense, the clear meaning of the words, is supposed to trump this very outcome. But such is not the case.
Let’s take prohibition: “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”
And yet ceremonial wine was allowed as an exception. Several new religions/churches sprung up immediately. Who knows what direction religion would have taken in the USA if Organized Crime had not filled this vacuum?
Dear Thomas: “The Constitution means what the Supreme Court says it means.” /// Not what you or I might think to the contrary. Its the rare Supreme Court decision that does not have one or more dissenting/minority opinions. Those opinions could all potentially have been the decision of the Court and famously a few of them become the decision of the court later. Social Security was deemed Unconstitutional until FDR threatened to pack the Supreme Court. Overnight, SS became Constitutional. Same Constitution–different desires of those in charge.
thomas–you are guilty of “not thinking.” Guilty of magical thinking: thinking an issue can only be interpreted “one way”/your way.
Sadly, the world/reality just doesn’t work the way you BLINDLY think it does. It may suck, but thats reality.
#68
When did I ever say that law of any kind can be interpreted one way? It is obviously true that there are a finite number of ways that law be interpreted even if that number can be quite large but at no time did I ever say that any law can only be interpreted one way. Further, it is possible to write a law that is sufficiently explicit that the number of ways in which it can be interpreted approach one.
Your example of the Commerce Clause shows that you are still tapping the egg nog. The Commerce Clause, as it is written in the Constitution is not at all definitive in meaning which is the problem. The meaning we gather about the Founder’s original intent is derived from a series of discussions, letters and ancillary newspaper articles but not from the original document itself. That’s the part of the problem. That is what has made that clause so flexible (too flexible) in its application to real cases. What it has come to mean, in some cases, is any financial transaction of any kind even though it is dubious that the original Founders intended it to mean that.
Your second example of the 18th amendment shows you need to read more about Prohibition. The 18th Amendment did not ban consumption of alcohol; only acquisition of alcohol for for beverage purposes. Drinking wine at a church service was not considered a “beverage purpose”.
RE: The Constitution means what the Supreme Court says it means
The Constitution as it applies to actual case law means what the Supreme Court last said it meant. The Supreme Court has reversed its own decisions on occasion. Still, that does not mean that the Supreme Court can go completely off the reservation. Using our previous example of an Amendment which restricted free speech on the Internet, the Supreme Court is not at liberty to state that this Amendment is void by a previous amendment for example. That would go completely contrary to the Amendment concept. That would be equivalent to the Supreme Court saying that alcohol was still prohibited because they consider the 21st Amendment void. Such a decision would create a massive backlash faster than you can say Constitutional Convention.