Few legal scholars even dare ask the question of whether a constitutional amendment can be unconstitutional. It has been asked and some scholars have dared to argue that an amendment can be unconstitutional. They are few and far between and the overwhelming consensus appears to be that passing the high process bar that Article V of the Constitution provides, once ratified it is now a part of the Constitution and can only be revoked by yet another amendment. This consensus has generally become the public consensus as well.
“Such responses are hardly surprising in view of the scant attention the matter has received.” For the multitudes that dismiss the question of whether an amendment can be unconstitutional, Article V of the Constitution is their keystone. That keystone being that Article V provides for the procedure in passing an amendment but makes no provision for any substantive limitations. This tends to be the view of the general public familiar with Article V, hopefully not legal scholars because it is not entirely correct.
The Equal Suffrage Clause, providing that no state shall be deprived of the equal suffrage of the Senate without its consent, expressly announces at least one clause that cannot be amended. This express text of Article V arguably dispels any notion that substantive limits of amendments have not been provided. If there are cogent and coherent arguments to be made as to why there should not be substantive limitations on the amendment process, they are not provided by Article V. Before making arguments as to why there are substantive limitations on amendments, it is worthwhile to make the arguments as to why there are not.
“Exploration of the reach of the amending power is more than mere indulgence in a brainteaser, it is an inquiry that can give us much insight into the way we think about our Constitution. When we answer the question as to what we can never do constitutionally, we have gone a long way towards clarifying the American conception of constitutionalism.” Thus far, it does not appear as if anyone of substance (SCOTUS or Congress) have answered the questions of what we can never do constitutionally. In fact, in the rare instances where an amendment was challenged on substantive grounds, the Supreme Court has rejected those arguments and “no limitations on substance have yet been found.”
Lester Orfield, the author of the above quote goes on to state “it is unlikely that any will ever be found.” The former claim made by Orfield is demonstrably true. The latter claim is up for debate. Of the case law where amendments have been challenged on substantive grounds, reasons for their rejection do not include any notion that amendments passed are immune to challenges of unconstitutionality.
What in the Constitution cannot be Amended? 23 Arizona Law Review 717, Linder D.
The Amending of the Federal Constitution L. Orfield, University of Nebraska Law School, 1942
“…[w]hen we answer the question of as to what we can never do constitutionally, we have gone a long way toward clarifying the American conception of constitutionalism.”
“…implied limits on the substance of constitutional amendments flow flow from the inescapable logic of any reasonable view of the basic purposes underlying the Constitution, and from the requirement that constitution exist as a minimally unified, coherent, functioning document.”
Popular Basis of Political Authority Thomas Jefferson to James Madision
“I set out on this ground, which I suppose to be self-evident, “that the earth belongs in usufruct to the living:” that the dead have neither right nor power over it.”
“What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals.