Could the Supreme Court rule that part of the US Constitution is unconstitional? For example, if an amendment were passed prohibiting homosexual marriage, could the Supreme Court later rule that amendment unconstitutional based on other parts of the constitution?
ANSWER PERSON RESPONDS: Hmmm … an interesting conundrum. From a practical standpoint I wouldn’t expect a really questionable amendment to actually make it through the process to become part of the Constitution (that’s not to say I can’t see it happening in this day and age). I think all the rules about 2/3 majorities and getting the state legislatures as well as the Congress to pass an amendment has something to do with making sure it’s well thought out before becoming part of the Constitution.
In its article entitled “constitutional amendments, limits on,” the Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002 by John R. Vile (Perkins and Lilly Reference 342.7303 V699, E56, 2003 ; also at Law Library ) touches on this subject (its example is the flag-burning amendment). Some legal scholars believe that such an amendment could be subject to judicial invalidation due to contradictions with previously existing parts of the Constitution. The article implies, but doesn’t explicitly say, that the invalidation could come after adoption of an amendment. (But then who’s to say that the earlier part of the Constitution couldn’t be invalidated due to conflict with the new amendment, which would by then also have become an integral part of the Constitution!?) On the other hand, the vagueness of the Constitution leaves it open to a lot of interpretation, so how can anything contradict it or vice versa? There’s a lot of judgment involved, and the opinions of qualified legal scholars differ. To witness the consequences, we’ll probably have to wait until one of these amendments is ratified.