Could the Constitution be amended to change the way the Constitution is amended?
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  Could the Constitution be amended to change the way the Constitution is amended?
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Author Topic: Could the Constitution be amended to change the way the Constitution is amended?  (Read 971 times)
Vega
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« on: November 07, 2018, 10:02:00 PM »

For example, if an amendment stating that instead of receiving the support of 3/4 of legislatures to pass an amendment, said amendment would go to a nationwide referendum after 2/3 of Congress signs off on it - would that work?

Can the process of changing the constitution be changed itself?
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #1 on: November 07, 2018, 11:26:54 PM »

The only limitation on amendments today is that unless every State agreed, the Senate has to keep the same number of Senators per State.  Even that isn't particularly limiting as the Constitution could be amended to make the Senate essentially powerless.
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MarkD
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« Reply #2 on: November 08, 2018, 12:09:55 AM »

Sure, hypothetically, we can amend the Constitution to alter how we can amend the Constitution. However, a change like that is going to be pretty hard to get a national consensus on. It's an alteration of the Constitution that is pretty fundamental to the nature of the document itself, and lots of people would be hesitant to tamper with that.
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NewYorkExpress
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« Reply #3 on: November 09, 2018, 06:52:22 PM »

I'm pretty certain that in the text of an amendment itself, you could mess with how the amendment gets through the states, my source being the Equal Rights Amendment, which had a finite time limit on ratification, which most amendments did not have.

So, it's certainly a plausible, if controversial for a future amendment to require more or less states than the usual "magic number" needed for ratification.

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Skill and Chance
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« Reply #4 on: November 11, 2018, 07:54:34 PM »

I think something like this did happen at least once during the Founding Era?  It would certainly be a blockbuster SCOTUS case.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #5 on: November 11, 2018, 09:45:28 PM »

I think something like this did happen at least once during the Founding Era?  It would certainly be a blockbuster SCOTUS case.

You're probably thinking of Coleman v. Miller, 307 U.S. 433 (1939) which was cited during the ratification of the 27th Amendment more than 202 years after the amendment was sent to the States.  Basically SCOTUS punted to Congress on the question of whether time limits apply or not.  The weird thing about Coleman is that was brought primarily to resolve whether or not Kansas had ratified the Child Labor Amendment or not. That amendment stalled once SCOTUS stopped striking down child labor laws and the perceived need for it had passed.
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dead0man
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« Reply #6 on: November 12, 2018, 09:59:41 AM »

How would you sell the idea to the smaller states (or whichever states you're trying to get an unwanted Amendment passed)?
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The Mikado
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« Reply #7 on: November 12, 2018, 10:03:24 PM »

If this had been in place 15 years ago, the 28th Amendment to the Constitution would be to ban flag burning.
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Slander and/or Libel
Figs
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« Reply #8 on: November 14, 2018, 09:58:38 AM »

The only way something could be entrenched and immutable is if it were contained in a section that was deemed (also within that section) to be non-amendable. Presently, Article V reads:

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Let's say instead it said:

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In that case, they could have put everything they wanted to be immutable into that article. The fact that they didn't means that if, say, they wanted to change the structure of the senate, they could first amend the part that says they're not allowed to amend that part, and then amend that part. I imagine there may be some sort of challenge about the process, and whether they could pass both amendments at the same time, with one amendment's taking effect contingent only on the other one's passage, or if they would have to pass them separately. But they could clearly change the amendment process itself by amendment.
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