Question
So, what happens if the Constitution becomes unconstitutional:
A constitutional amendment to outlaw flag burning cleared the House Wednesday but faced an uphill battle in the Senate. An informal survey by The Associated Press suggested the measure doesn’t have enough Senate votes to pass.
The 286-130 outcome was never in doubt in the House, which had passed the measure or one like it five times in recent years. The amendment’s supporters expressed optimism that a Republican gain of four seats in last November’s election could produce the two-thirds approval needed in the Senate as well after four failed attempts since 1989.
So, if an amendment actually restricts the free speech protected by the first amendment, which one takes precedent? And this is another one of those reasons why the Republicans are having some dissent in their ranks.
Update: Bruce has a round up.
June 23rd, 2005 at 10:33 am
The newer amendment trumps the older one. Always. Else we’d still be debating whether alcohol is illegal, on the theory that the 21st Amendment unconstitutionally violates the 18th.
June 23rd, 2005 at 10:36 am
Yeah, but the 21st specifically mentions the 18th.
June 23rd, 2005 at 11:22 am
There’s an additional complication for the 1st and 2nd Amendments. Does “Congress shall make no law” and “shall not be infringed” imply that Congress does not have the power to amend those amendments? That’s a tricky one, I think. The language in the rest of the bill of rights is more amenable to being altered by amendment.
June 23rd, 2005 at 12:09 pm
That goes to the question of how to interpret the 21st Amendment, not its constitutionality. An identically worded statute purporting to repeal the 18th Amendment would clearly have been unconstitutional. However, the fact that the new amendment does not directly address the First Amendment, or even repeal it outright as to flag desecration as such. Rather, it merely grants Congress the power to prohibit the desecration of the U.S. flag. To the extent the courts can go on enforcing their prior First Amendment cases without violating the new amendment, they will. That means a state law similar to the one struck down in Texas v. Johnson will still be held unconstitutional, as will any federal law aimed at protecting any other flag.
Note more generally that if your theory were valid that a duly enacted constitutional amendment could itself be “unconstitutional,” this would prove that every constitutional amendment, or at least every substantive one, is also “unconstitutional.” Show me a constitutional amendment that doesn’t “violate” the Constitution that existed when it was enacted, and I’ll show you a constitutional amendment that doesn’t do anything at all.
Nah. When in doubt, watch that old Simpsons episode with the Schoolhouse Rock parody. Constitutional amendments limit what Congress can do by ordinary legislation, but they pose no bar whatsoever to future constitutional amendments. The only limits on that are found in Article 5, which provides “that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Anything else is fair game. The only thing that privileges constitutional rights over statutory ones is that constitutional ones are harder to repeal.
June 23rd, 2005 at 12:28 pm
Actually, I have half-take back my confident prediction that state bans on flag desecration will remain unconstitutional if the new amendment passes. I still think that’s right, but I’m not 100% sure. The twist is that the First Amendment by itself applies only to Congress, and it was only by judicial slight of hand that it ever extended to the states in the first place. Now that a constitutional prohibition originally intended only for Congress no longer applies to Congress itself, will a court still see fit to “incorporate” that now-nonexistent Congressional prohibition against the states? Probably, but maybe not. I’m working on a longer blog entry on the subject.
June 23rd, 2005 at 12:32 pm
“Show me a constitutional amendment that doesn’t “violate” the Constitution that existed when it was enacted, and I’ll show you a constitutional amendment that doesn’t do anything at all.”
I’ll concede the point. Never looked at it that way.
June 23rd, 2005 at 12:35 pm
I suppose there will now be arguments as to what is “desecration” and what is “speech”. Some things are obvious, but others will form a grey-area.
June 23rd, 2005 at 2:09 pm
We are now living in a theocracy…what else would you expect?