If a proposed amendment violates the Constitution, should the Supreme Court be able to block its ratification?  Explain.

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pohnpei397's profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

No, the Supreme Court should not be able to block such a proposed amendment.  After all, any amendment is, by its very definition, a change to the Constitution.  That means that essentially any amendment to the Constitution would have to be unconstitutional.  The amendment process is the way that we are given to officially change the Constitution.  The Supreme Court should not be able to keep the people from changing the fundamental law of the land.

There are at least three cases in which amendments that were clearly against the Constitution as it was at the time were proposed and ratified.   The first of these was the 13th Amendment, which banned slavery.  Up until that time, slavery had been tacitly accepted by the Constitution in such places as the three-fifths compromise.  Surely we would not have wanted the Supreme Court to block that amendment.  Secondly, the 21st Amendment repealed Prohibition.  It explicitly overruled a previous amendment that had enacted Prohibition.  This would clearly have made it unconstitutional and yet we do not think it was a bad amendment to enact.

There needs to be a way for us to change the Constitution.  If the Court blocks us from doing so, we have no way to change the fundamental law.  This would be terribly undemocratic.

pholland14's profile pic

pholland14 | (Level 1) Associate Educator

Posted on

No, the courts should not be able to block amendments to the Constitution because it is the court's job to uphold and interpret the laws.  Only Congress with the help of the states can amend the Constitution--this is explicitly mentioned in Article V of the Constitution.  At its creation, the Constitution mentioned slavery in the three-fifths compromise, but in 1865 Congress and the states passed an amendment prohibiting slavery.  The courts did not say that the Thirteenth Amendment was unconstitutional.  In 1913, Congress passed the Sixteenth Amendment which created an income tax.  The Supreme Court did not say that this was unconstitutional either.  The justices on the Supreme Court do not answer to the American people because they are appointed, not elected.  By giving them power to change the Constitution, it takes away lawmaking and governing power from the people and puts it into the hands of a few people–the very thing the Constitution is meant to prevent.  

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