Can Constitutional Amendments Be Unconstitutional?

Can an amendment to the United States Constitution--one that satisfies the requirements in Art. V.--be unconstitutional? If a constitution contains an amendment process, and contains no entrenched provisions, it should permit any change whatsoever. Right? If so, such a constitution can be completely revised. Jefferson's quip about revising the Constitution every generation reveals how unremarkable complete constitutional revision is. But what if the U.S. Supreme Court were to reject certain kinds of amendments as unconstitutional? What if the Court insisted that the Constitution had certain unstated essential ingredients that could not be changed? For example, suppose the Court were to disallow any amendment designed to repeal Art. IV, Section 4, guaranteeing a republican form of government to the states, on the grounds that this would fly in the face of the basic republican structure of American constitutionalism. Would this justify the Court in striking such an amendment down?

Suppose, then, that an amendment--Amendment Twenty-eight--was ratified according to the requirements of Art. V stating that the federal government will no longer guarantee a republican form of government to the states. Suppose further that the Supreme Court, in the first case to test the meaning and constitutionality of Amendment Twenty-eight, (let's set aside the question of justiciability for now), strikes it down. Could the Court ever be justified in doing this? It's difficult to see how the Court could pull this off. Although, judicial supremacy defines current constitutional practice, if the United States Supreme Court prevented what seems like obvious bona fide constitutional change, it's likely that the Justices would be impeached or at the very least, the people would stridently call for Congress to remove the review of constitutional amendments from the Court's jurisdiction. But what if the Court refused to accept this limitation? Ok, Ok, I know what you're thinking. What's the point of such far-fetched hypotheticals? It's ridiculous to think that this scenario could occur in any constitutional democracy whatsoever.

Think again! The Indian Supreme Court has assumed the authority to determine when an amendment compromises the Indian Constitution's basic structure. In Minerva Mills, extending "the basic structure doctrine" first formulated in Keshavananda Bharati v. the State of Keralathe, the Court held that Parliament's authority to amend the Constitution does not extend to amendments designed to change (damage, destroy) "its basic and essential structure." (502) In short, according to Granville Austin's Working A Democratic Constitution: A History of the Indian Experience, Parliament's power to amend the Constitution "was limited and it was not competent to alter the basic structure of the Constitution." (504) Accordingly, "the Supreme Court ensured that it (the Court) would remain the foundation of the country's constitutionalism." (506) The Indian Court demonstrates just how amateurish our system of judicial supremacy is. Indian constitutionalism is committed to judicial supremacy with a vengeance, or so says its Court.

What are the chances that the United States Supreme Court would ever emulate the Indian Court in this manner? The short answer is slim to none. However, after the 5-4 majority in Bush v. Gore decided to halt a remedy for any existing (or non-existing) equal protection violations in the 2000 presidential election fiasco, and as a result selected the next president of the United States, one cannot be too confident. To be wary of judicial supremacy--especially wary of what unexpected venue the Court might barge into next-- does not amount to hysteria. The same argument in favor of judicial supremacy--namely, electoral government must have external checks--applies, with equal force, to the Court. However conscientious Supreme Court justices are, they are no more or less successful at discounting their own preferences--whether material interests, partisan allegiances, or jurisprudential convictions--than anyone else. Remember Nietzsche’s admonition that “[c]onvictions are more dangerous enemies of truth than lies." Consequently, some effective external check on the judiciary is necessary if we are to be authentically self-governing.