State Sovereignty: Scope of the Amendment Power

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#1

 
The US Constitution declares only one restriction on the amendment power, that no amendment can be made which would deprive any State of equal suffrage in the Senate without its consent. Otherwise, it would appear, the amendment power is absolute. While the idea of legal limits on the amendment power seems questionable, regardless of any legal limits, the amendment power was placed into the hands of the States so that it would be limited. Certainly 3/4 of the States would not use the amendment power to deprive 1/4 of the States of their lives/liberty/property. We trust that certain amendments would never be deemed proper by 3/4 of the States.

If there is a legal limit on the amendment process, it would seem to regard the ability to amend away the Union or the States. In Texas v White, the SCOTUS said that "The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States". Story said that the Union "is indissoluble through any steps contemplated by, or admissible under, [the Constitution's] provisions or on the principles on which it is based, and can only be overthrown by physical force effecting a revolution." Tucker said that a State would be annihilated if certain powers were not in its possession:

"But where a power of a State, included either in its reserved powers or its police power, is one without which no State can exist, which is essential and necessary to the protection of the health, the safety, or the morals of the people, such power cannot be surrendered by the State or absorbed by the Federal Government, because to do so would annihilate the State." Thomas M Tucker, Limitations on the Treaty-making Power Under the Constitution of the United States

Even if we accept the premise that the States cannot legally use the amendment power to delegate essential powers, it is hard to see how such a limitation could be enforced. If the SCOTUS were to have a power to declare an amendment to be unconstitutional, then there would seem to be no way to use the amendment power to restrain an out of control federal government. We trust that 3/4 of the States will not try to commit suicide by delegating away powers essential to their existance.

The SCOTUS seems to believe that the amendment power cannot destroy the Union or the States, which would seem to preserve our federal system. However, within this federal system, the SCOTUS has said that anything goes. Even if 3/4 of the States abolished the USBOR and created an absolute government, the SCOTUS has called this a peaceful and lawful revolution by ballot:

[i]The American Communists have imported the totalitarian organization's disciplines and techniques, notwithstanding the fact that this country offers them and other discontented elements a way to peaceful revolution by ballot. If they can persuade enough citizens, they may not only name new officials and inaugurate new policies, but, by amendment of the Constitution, they can abolish the Bill of Rights and set up an absolute government by legal methods. They are given liberties of speech, press and assembly to enable them to present to the people their proposals and propaganda for peaceful and lawful changes, however extreme. [/i] American Communications Assn. v. Douds (1950)

Again, we trust that 3/4 of the States would not abolish the USBOR and transform the US into a communist system with an absolute government. Even if they wanted a communist system with an absolute government, perhaps they would consider that Virginia did not consent to anything of that nature. It is one thing for 3/4 of the States to have their own revolution binding themselves, but it seems quite another for 3/4 of the States to have a revolution in the other 1/4 States.

In our system of government, the States have sovereignty against each other and against the federal government. If this is believed, if people see the states as having sovereignty against the other states and the federal government, then it would seem to follow that they would not use the amendment power as "peaceful revolution by ballot". All it takes is "1/4 plus one" of the States to have some minimal belief in state sovereignty to limit the amendment power from being abused in such a manner.

"I assert then, without hesitation, that we have created a Constitution of a democratic republic for the protection and perpetuation of popular rights, and on an assumption that whatever is done under it will be done in conformity with the principles which underlie that Constitution. Of nothing is that more especially true than of the provision respecting amendments. If the makers of the Constitution, in limiting this provision, stopped short of forbidding such changes as would be inharmonious, they did so because it was not in their thought that any such changes could for a moment be considered by congress or by the states as admissible" Thomas M. Tucker, Albany Law Journal, Volume 63
 

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CharacterGroove

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#3
That's a lot to digest.

Starting with the 1st paragraph, I agree that the only limitation that remains relates to a state's suffrage. I interprete that as 3/4s of states cannot limit any state's representation in both houses of Congress. Simple enough.

Where you go beyond that is highly debatable. Starting with the fundamentals, a state doesn't have "life" or "liberty," so let's dismiss those. A state can have property, of course, but I see nothing in Article V that would limit the Constitution, as amended, from drawing limits on the ability for states to own or manage property.

So if we accept your thesis, then we're left arguing what is "essential" for a state to be a state under the Constitution. Certainly amendments have significantly limited state sovereignty in the past (e.g., the 14th). I'm not convinced all powers currently reserved for are "essental" to the state. Regardless of whether I believe it's better policy for those powers to remain there.
 

OpnCoronet

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#4
If the Constitution can be amended out of existence and/or replace the form of gov't with another(as proposed by Calhoun), the scope of the Anmendment Power would, to all intents and purposes, seem to be unlimited.
 
Joined
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#5
a state doesn't have "life" or "liberty," so let's dismiss those.
You miss the point ... if the amendment power is absolute, then 3/4 of the States could ratify an amendment that deprived the people of 1/4 of the States of their life/liberty/property.
 

CharacterGroove

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#6
You just repeated yourself. I'll do the same in the hopes of showing you what I meant.

Regardless of whether the amendment power is absolute, because a state has neither "life" nor "liberty," it's not possible for either to be deprived by the amendment process.
 
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#7
I don't think I'm repeating myself ... you said that states don't have lives or liberty ... so I tried to explain that what I meant to say is that the citizens of Virginia have lives and liberty, and that if the amendment power is absolute, then 3/4 of the states could use it to deprive Virginians of their life/liberty/property ... and you repeat yourself, that states don't have liberty or property ... I am at a loss ... I don't know how to say what I mean more clearly.
 

brass napoleon

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#8
I don't think I'm repeating myself ... you said that states don't have lives or liberty ... so I tried to explain that what I meant to say is that the citizens of Virginia have lives and liberty, and that if the amendment power is absolute, then 3/4 of the states could use it to deprive Virginians of their life/liberty/property ... and you repeat yourself, that states don't have liberty or property ... I am at a loss ... I don't know how to say what I mean more clearly.
Are you saying that 3/4 of the states could theoretically pass an amendment to mass murder all the people of the remaining states? If so, I believe you're right - theoretically that is.
 

CharacterGroove

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#9
I don't think I'm repeating myself ... you said that states don't have lives or liberty ... so I tried to explain that what I meant to say is that the citizens of Virginia have lives and liberty, and that if the amendment power is absolute, then 3/4 of the states could use it to deprive Virginians of their life/liberty/property ... and you repeat yourself, that states don't have liberty or property ... I am at a loss ... I don't know how to say what I mean more clearly.
After rereading your post, let me retract my last one. My apologies on not reading it carefully.

In any event, I don't read Article 5 as having any prohibition against an amendment targeting citizens in one state - absent their right to equal suffrage in the federal government. Such an amendment, in turn, would invalidate other clauses seeking to protect them.

But such a hypothetical is pointless. Just because something is "constitutional" doesn't make it right. The Declaration of Independence might apply directly.
 
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#13
I don't know that the reconstruction amendments are an example of following the amendment process ... I don't think that the 13th Amendment would have passed congress if the Southern States had representation ... and I have some doubt that it would have been ratified by 3/4 of the states if the citizens of each state had been free to elect their own state legislatures ...
 

CharacterGroove

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#14
I don't know that the reconstruction amendments are an example of following the amendment process ... I don't think that the 13th Amendment would have passed congress if the Southern States had representation ... and I have some doubt that it would have been ratified by 3/4 of the states if the citizens of each state had been free to elect their own state legislatures ...
How was Article V not followed?
 

brass napoleon

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#15
I don't know that the reconstruction amendments are an example of following the amendment process ... I don't think that the 13th Amendment would have passed congress if the Southern States had representation ... and I have some doubt that it would have been ratified by 3/4 of the states if the citizens of each state had been free to elect their own state legislatures ...
"Spoils of war"
 

trice

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#16
I don't know that the reconstruction amendments are an example of following the amendment process ... I don't think that the 13th Amendment would have passed congress if the Southern States had representation ... and I have some doubt that it would have been ratified by 3/4 of the states if the citizens of each state had been free to elect their own state legislatures ...
It seems to me that the Southern states decided to withdraw their representation and refused to participate in the process, causing that conflagration we call the Civil War and leading to the passage of the 13th Amendment. So if you are talking about a situation in which "the South" never seceded, I suppose you might be accurate -- but given what "the South" actually did, it was virtually inevitable that the 13th Amendment would pass.

Tim
 

OpnCoronet

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#17
All man made gov'ts aare flawed and subject to misuse or becoming tyrannical. But that fact alone casts no light on whether the Constitution is more or less susceptible to those flaws
The fact is IMO, the power of any and all gov't are ultimately limitless. If idiots or proto-tyrants can circumvent or ignore the safeguards provided in the governing process, then any outrage can be committed that the people will endure. While the Constitution is no different, that does not change the fact, that it was designed to prevent just such events. You canoot protect people from themselves,
 

jgoodguy

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#18
I don't know that the reconstruction amendments are an example of following the amendment process ... I don't think that the 13th Amendment would have passed congress if the Southern States had representation ... and I have some doubt that it would have been ratified by 3/4 of the states if the citizens of each state had been free to elect their own state legislatures ...
1. The Reconstructions Amendments passed according to the terms of Article 5. With a little help from
I.5
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Which allowed Congress to impose conditions for the former Rebel States to have representation.
and
Treason laws which stripped voting rights from former Confederates and allowed Unionists to control State Governments.

Please let us know what you find illegal or unfair about that.

2. A anti slave amendment would have passed sometime in your alternate time line, just not in the middle of the 19th century.
 



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