Public Defense

Can the Constitution be unconstitutional?

By Gideon

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:

• Can a Constitutional Amendment overrule a Supreme Court decision?

Full post as published by A Public Defender on October 10, 2008 (boomark / email).