Monday, February 28, 2005

Constitutional Amendments

One of my friends on LiveJournal had a birthday a few days ago, and gave a list of things that had happened on his birthday, including:
1922: The Supreme Court unanimously declares the 19th amendment constitutional, defending women's right to vote.
This sounded a little strange. As one commenter asked:
Isn't an amendment to the constitution, by definition, constitutional?
So I did what any well-informed seeker after truth does in such circumstances: I asked Google.

The case is Leser v Garnett. Only successful amendments to the constitution are, by definition, constitutional. There have been plenty of proposed amendments that never made it, and Leser et al claimed that the so-called '19th amendment' was nothing of the sort, that its alleged ratification and incorporation into the constitution 1.5 years earlier was a hoax perpetrated on the nation. The Court unanimously rejected their arguments.

Whether Leser was a good decision is another question. If all you care about is that, as a result of Leser, women could now vote, then it was a good thing. But the case had nothing to do with women's rights, and everything to do with how amendments to the constitution are adopted. Leser says that:

  1. Congress and 38 state legislatures can amend the constitution any way they please, and the other 12 states have to go along; there is no amendment so sweeping that a state can say 'no'. If the House, the Senate, and 38 state legislatures decide that Bush is president for life, then that's the law and nothing can be done about it.
  2. State legislatures voting on constitutional amendments are fulfilling a federal function, and are not bound by their states' constitutions. So even if the voters of MA amended their constitution to say that the legislature shall not vote to amend the federal constitution in such a way, legislators are free to ignore that.
  3. If the Secretary of State receives notice from a state legislature claiming that it has ratified the amendment, she's bound by it whether it's true or not; and when she informs the courts that she has received 38 such letters and the amdendment is now law, they must accept it, and may not inquire into whether it's actually true.
I'm not at all sure that this is a good thing.


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