How can amendment be repealed

The issue need be framed only slightly differently when an amendment has the effect of diluting the voting strength of the states in the Senate. When the constitutional amendment is directed at remedying an evil unrelated to the senatorial voting patterns, as the proposed D.

Where, on the other hand, an amendment represents an effort to dilute the influence in the Senate of the smaller states, it should be declared invalid under the article five equal suffrage proviso. A test that focuses on whether an amendment was intended to lessen the impact of smaller states in Congress has several advantages.

It is true to the framers' intent, it is straightforward as constitutional tests go , and, by the narrow construction of the proviso it represents, it reduces the danger that any future amendment ever will be invalidated. On the other hand, intentions of a collective body are difficult to determine with any degree of confidence.

And here, where the relevant intentions are not only those of the congressmen who proposed an amendment but also the state legislators who voted for ratification, the difficulties are magnified. Intentions vary from person to person. Nonetheless, inferences can be drawn, and the court's task is really no different in kind from the inquiry it makes in certain equal protection cases, where evidence of purposeful discrimination is required before a constitutional violation can be found.

The comparison with equal protection law is apt since the article five proviso is a sort of limited equal protection clause for the benefit of small states. In , Congress proposed to the state legislatures a thirteenth amendment to the United States Constitution. It provided that: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The proposed amendment was plainly a last-ditch effort by Congress to prevent disunion, and with the outbreak of war between the states, all efforts to adopt the amendment ended. Within a few years, the thirteenth amendment to the Constitution was adopted to do the very thing that the proposed amendment would have prohibited: to abolish slavery in the states.

We can only speculate as to what might have happened had the proposed thirteenth amendment called the Corwin Amendment become part of the Constitution. It is most unlikely, however, that the presence of the Corwin Amendment in the Constitution would have discouraged the federal government from acting on the slavery issue.

The demands for federal action were simply too strong to be ignored. The obstacle posed by the Corwin Amendment could have been dealt with in any of several ways. One way would have been for the Supreme Court to construe the amendment to allow federal abolition or regulation of slavery-a difficult task since the prevention of federal "abolition or interference" with state laws permitting slavery was clearly the purpose of the amendment.

A second, revolutionary approach would have been to convene a constitutional convention for the purpose of drafting a new constitution that would specifically give to Congress the power denied to it by the amendment. A third, and probably more likely, scenario would have been the adoption of the thirteenth amendment-in our revised script of history, now the fourteenth amendment-with the Supreme Court eventually reaching the question of whether it could be enforced.

The question could have been presented to the Court as a result of the adoption of either two amendments one repealing the Corwin Amendment and a second abolishing slavery or one abolishing slavery.

Only a hidebound formalist would contend the difference is significant. If the measure of constitutional adjudication is fidelity to the intentions of the Congress that proposed the amendment, the result in either case should be the same. Since it was assumed by members of the Thirty-sixth Congress that the federal government already lacked power under the Constitution to regulate slavery in the States , the Corwin Amendment, if it had any legal significance at all, must have been intended to prevent any future amendment from authorizing Congress to regulate slavery.

Senator Douglas believed this to be not only the intent of the amendment, but its effect as well:. Were the Corwin Amendment to have become part of the Constitution, no less violence would be done to the intentions of the Thirty-sixth Congress by the simple adoption of an amendment prohibiting slavery than by adoption of such an amendment only after adopting another amendment repealing the Corwin Amendment.

The intention to prohibit repeal of the Corwin Amendment is implied by the terms of the amendment itself; no principled decision could depend upon whether the amendment did or did not include a clause expressly declaring the amendment not to be subject to repeal. If the Corwin Amendment had had legal significance beyond a mere admonishment to congressmen and state legislators, an act of Congress proposing an amendment repealing the Corwin Amendment would be unconstitutional, and the subsequent ratification of the amendment would be ineffective.

In view of the explicit limitations on the amending power contained in article five, the absence of any express prohibition of "unamendable" amendments such as the Corwin Amendment may argue against the existence of an implied limitation.

Obviously, the existence of the equal suffrage proviso of article five indicates that the makers of the Constitution gave some consideration to the scope of the amending power. Indeed, the explicit limitation in article five is the basis of an argument denying the existence of various limitations on the subject matter of amendments supposed to be implicit in the constitutional scheme. The unamendable amendment, however, stands on a different footing.

Had the framers meant to prohibit amendments abolishing the Supreme Court, establishing a hereditary monarchy, or uniting two existing states, one could reasonably expect them to have said so. But the same cannot be said about a prohibition against enforcement of amendments that are by their own terms not subject to repeal. The prohibition of amendments that would dismantle certain fundamental institutions and arrangements established by the Constitution, including the states themselves, was a topic specifically debated by delegates to the Philadelphia Convention; the question of amendments that would alter the nature of the Constitution itself was not discussed.

The debates indicate that the framers wanted the principles and institutions established in the Constitution to be open to evaluation and change. What is not clear is whether they intended their conception of a Constitution to be similarly subject to modification. There is little doubt, however, that the makers viewed the Constitution not as an end in itself but as a means of achieving a stable and just Union.

The Constitution was to provide a vehicle through which change could peaceably occur. It was thought far preferable for dissatisfied constituent groups to work through the amending process than to resort to other means to achieve their objectives. Mason said at the Convention: "The plan now to be formed will certainly be defective, as the Confederation has been found, on trial, to be. Amendments therefore, will be necessary and it will be better to provide for them in an easy, regular, and constitutional way, than to trust to chance and violence.

Nothing could be more inconsistent with the conception of the living Constitution than an unamendable amendment or an amendment authorizing unamendable amendments and which by its own terms is unamendable. As the framers recognized, the foreclosing of all possibility of constitutional change poses two dangers: it increases the risk of violence and revolutionary change, and it increases the risk that people will grow to disrespect the source of the institutions and arrangements that are forced on them.

The "arduous process has winnowed out all but a handful of the amendments proposed over the past years," Ron Elving, senior editor and correspondent on the Washington Desk for NPR News, wrote earlier this month.

How much more challenging would it be to tackle individual gun ownership in a country where so many citizens own guns — and care passionately about their right to do so? He pointed out the "tremendous support" gun ownership has in large parts of the nation, especially the South, West and Midwest, "which would easily total up to more than enough states to block a gun control amendment.

The second option for repealing an amendment is to hold a Constitutional Convention. In that case, two-thirds of state legislatures would need to call for such a convention, and states would write amendments that would then need to be ratified by three-fourths of the states. While it's theoretically possible to change the Constitution this way, "that's never happened since the Constitution was ratified," said Kevin McMahon, an expert in constitutional law and a professor of political science at Trinity College in Hartford, Connecticut.

In the history of the United States, the only amendment that's ever been repealed is Prohibition. The 21st Amendment, in , repealed the 18th Amendment, of , which prohibited the making, transportation and sale of alcohol. The appointment of additional and acting judges for which provision is sought to be made in clause 14 will also involve either frequent modifications in the order or a fixation of the maximum number at a high figure.

It is, therefore, proposed to omit the proviso to article It is proposed to revise the article so as to relax this complete ban and permit a retired judge to practise in the Supreme Court and in any High Court other than the one in the which he was a permanent judge.

Clause 2 of this article goes on to provide that when a judge is so transferred he shall be entitled to receive in addition to his salary a compensatory allowance. It is felt that there is no real justification for granting such an allowance and it is accordingly proposed to omit clause 2.

It is, therefore, proposed to replace this article by a provision for the appointment of additional judges to clear off arrears and for the appointment of acting judges in temporary vacancies. While under article there will normally be a separate High Court for each State, power will be required to establish common High Courts for two or more States.

Power will also be required to extend the jurisdiction of a High Court to a Union territory, wherever necessary, and to exclude the jurisdiction of a High Court from such territory. The revised articles and are designed to make these provisions. This lacuna has been found to be of practical consequence in connection with the execution of certain development projects in the States. It is proposed to fill the lacuna by a new article A. This arrangement was confirmed by article 10 ii of the Constitution.

It is proposed that the existing arrangement should be continued even after the formation of the new State of Kerala , but the contribution to the Travancore Devaswom Board from the Consolidated Fund of that State should, in view of the transfer of territory from Travancore-Cochin to Madras, be reduced from Rs. Similarly , the holding, acquisition and disposal of property and the making of contracts by the Union or a State could be for any purpose without constitutional impropriety. At the same time, the revised article provides that this extended executive power of the Union and of the States will be subject, in the former case, to legislation by the State, and in the latter case, to legislation by Parliament.

This article will enable the President to constitute regional committees of the State Legislative Assembly and secure their proper functioning by directing suitable modifications to be made in the rules of business of Government and in the rules of procedure of the Assembly. Taking into account the level of income at the bar and salaries payable to the judicial services in these States, it is considered that there is no need to increase the salaries payable to the Judges of these High Courts to the level of the other High Courts.

It is proposed to amend sub-paragraph 1 of paragraph 10 of the Second Schedule to the Constitution providing for a salary of Rs. Sometimes it becomes necessary to appoint a retired district judge as a judge of a High Court. In the absence of a legal provision for withholding the pension due to such a judge, it has been the practise to obtain from him an undertaking that he would not claim the pension for the period for which he serves as a High Court judge.

Since this is obviously unsatisfactory, it is proposed to add a proviso to paragraph 10 1 of the Second Schedule on the same lines as the proviso to paragraph 9 1 thereof regulating the salary of a judge of the Supreme Court in similar circumstances. Sub-paragraphs 3 and 4 of paragraph 10 are no longer required, since appropriate provision has been made in the High Court Judges Conditions of Service Ace, In order to avoid these difficulties and simplify the constitutional position, it is proposed to omit the entries in the Union and State List and replace the entry in the Concurrent List by a comprehensive entry covering the whole subject.

A large number of ancient monuments, archaeological sites, etc. It requires another Act of Parliament to make the slightest alteration in, or addition to, the lists in that Act, which seems to be and unduly cumbrous procedure. It is, therefore, proposed to amend the entry substituting for the words "declared by Parliament by law", the words "declared by or under law made by Parliament". The same amendment is also proposed to be made in the connected provisions, entry 12 of the State List, entry 40 of the Concurrent List and article The omission of entry 7 of List I appears to be due to an oversight and is sought to be rectified in this clause.

Clause 26 and the Schedule. VIII pertaining to the Assam tribal areas. The 14th April, Amendment of article 1 and First Schedule. The most recent was to give full voting rights to the District of Columbia, which expired unratified in Clearly, this method of amending the Constitution can be lengthy and time-consuming. However, the U. Beginning with the 18th Amendment granting women the right to vote , it has been customary for Congress to set a maximum time period for ratification.

This is why many have felt the Equal Rights Amendment ERA is dead, even though it now needs only one more state to ratify it to achieve the required 38 states. The ERA was passed by Congress in , and 35 states had ratified it by its extended deadline of However, in and , two more states ratified it, concerned about the constitutionality of setting those deadlines.

An effort in Virginia to become the 38th state to ratify the ERA failed by a single vote in February Pundits expected a battle to ensue in Congress over whether to accept the "late" ratifications had Virginia succeeded. Under the second method of amending the Constitution prescribed by Article V, if two-thirds currently 34 of the state legislatures vote to demand it, Congress is required to convene a full constitutional convention.

Though this more momentous method has never been used, the number of states voting to demand a constitutional amending convention has come close to the required two-thirds on several occasions.

The mere threat of being forced to surrender its control of the constitutional amendment process to the states has often prompted Congress to preemptively propose amendments itself.

Although not specifically mentioned in the document, there are five unofficial yet legal ways of changing the Constitution used more often—and sometimes even more controversially—than the Article V amendment process.

These include legislation, presidential actions, federal court rulings, actions of the political parties, and simple custom. Any existing constitutional amendment can be repealed but only by the ratification of another amendment. Because repealing amendments must be proposed and ratified by one of the same two methods of regular amendments, they are very rare. In the history of the United States, only one constitutional amendment has been repealed. Though neither has ever come close to happening, two other amendments have been the subject of repeal discussion over the years: the 16th Amendment establishing the federal income tax and the 22nd Amendment limiting the president to serving only two terms.

Most recently, the Second Amendment has come under critical scrutiny. Stevens argued that it would give more power to people's desire to stop gun violence than the National Rifle Association. Actively scan device characteristics for identification.