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What happens if the slavery one gets ratified? Does it invalidate the 13th? Does the 13th invalidate it? Does it become a constitutional crisis and we duke it o

What happens if the slavery one gets ratified? Does it invalidate the 13th? Does the 13th invalidate it? Does it become a constitutional crisis and we duke it out to figure out which one wins?

tptacek 9y ago
This is approximately as interesting a question as "what would happen if a new amendment authorizing slavery passed Congress and was ratified by three quarters of the states?"
- exolymph 9y ago
  You don't think that's an interesting hypothetical? Do you think interest implies endorsement?
tdhoot 9y ago
The later amendment always wins. See, for example, the 18th amendment which was later repealed by the 21st amendment.
- baddox 9y ago
  I believe you that the later amendment would win, although that’s not necessarily evident from the example of the 21st amendment, since its text explicitly repeals the 18th amendment and thus doesn’t leave the ambiguity of two contradictory texts in place. A better example might be the 17th amendment, which changes the way that US senators are elected as described in Article I.
- astura 9y ago
  I wouldn't use that as an example, the wording of the 21st amendment is "The eighteenth article of amendment to the Constitution of the United States is hereby repealed," not "the manufactuer, sale, and transportation of intoxicating liquors should not be prohibited." It's my opinion that if there was a new amendment that would be in direct conflict with the other amendments without expressly repealing them the conflicting amendment it would be a constitutional crisis and it would cause political instability. It would be, at the very least, go to the Supreme Court.
  - philwelch 9y ago
    That's empirically not the case--lots of boring procedural stuff in the Constitution was repealed by amendments without having to specifically use the word "repeal" in the amendment itself, e.g. the election of Senators, when Congressional and Presidential terms begin and end, the succession procedure for the Vice President to assume the Presidency, and so forth.
    - adrianratnapala 9y ago
      Yes, new laws overriding old ones is just common sense. Where I imagine you could get a crisis is if an amendment passes and then some (powerful) people then say "oh by the by -- did you notice that it implicitly limits X part of the bill of rights". Still this is not very likely. Not because people in the US don't want to wind back fundamental rights. But because they have easier ways of doing it than passing amendments -- even sly ones.
      - philwelch 9y ago
        Also, this is kind of the point of doing so by amendment. The old idea of amending the constitution to outlaw same-sex marriage was designed to forestall an Obergefell v. Hodges type decision. On the other side of the aisle, constitutional amendments around campaign finance or corporate personhood would supersede the interpretation of the First Amendment applied in Citizens United v. FEC.
- jacurtis 9y ago
  Yes, the later amendment would win. That is the reason for the ammendments in the first place, is to repeal, modify, or add to the constitution. So if it were to get ratified than it would trump (no pun intended) the earlier amendments or constitutional elements that it contradicts. Of course before you lose too much sleep over this thought, remember that we could then pass another amendment to repeal that amendment which repealed the other one. Life will find a way.
Sniffnoy 9y ago
Whie tptacek has basically the right answer here, it's worth reading the actual text of the Corwin Amendment: > 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. What the Corwin Amendment does, then, is ban further amendments that would abolish slavery. But since the prohibition against slavery is now already part of the constituion, it would, AFAICT, not be affected by the hypothetical ratification of the Corwin Amendment.
- curun1r 9y ago
  > is ban further amendments I'm not sure it even does that. Reading the passage you quoted, it seems like it only bars amendments that give Congress the power to interfere with state slavery laws. But the amendment that freed the slaves didn't give Congress that power, it just freed the slaves itself. It sounds like The Corwin Amendment only covers attempts to abolish slavery that wouldn't go through the process of ratification by the states.
- adrianratnapala 9y ago
  The slave states would have have said that this was just bolstering an existing, common understanding that the US was voluntary association of states, and hence even the US constitution could not override basic state powers. And before the Civil War, that understanding might well have held in both the North and the South. Indeed northern states often thumbed their noses at the federal fugitive slave laws -- including the Constitution. By the time of the war though, the political state of play was that state sovereignty and the abolition of slavery were at loggerheads -- and abolishing slavery was far more important.
jcranmer 9y ago
There's a lot of constitutional theory that basically falls under the category of "it's never mattered, so we've got no idea how to interpret what-if scenarios." The Corwin Amendment falls under that in several different ways: * Does an amendment to the Constitution have the power to prevent amendments to the Constitution? If so, do later amendments have the ability to overturn this limitation of power? * Would the amendment actually have any effect, since the 13th amendment was enacted before the Corwin Amendment? That is, is the amendment implicitly retroactive? * Is it possible for states to rescind their ratification? For that matter, can Congress rescind its ratification? * For bonus points, try to figure out what the rules are for the Article V convention to amend the Constitution, in particular in deciding whether or not we are supposed to be having one right now.
- bdhe 9y ago
  Also, beyond a certain point, there isn't anything sacred about the Constitution or its Amendment process in so far as a majority of the collective populace agrees to it and there are powerful bodies enforcing it. Ultimately, as we have seen countless times including now, in China, and 2 years back in Turkey, might is right and any constitution can be amended arbitrarily under the right circumstances by the right people with the right power and control over armies.
  - Feniks 9y ago
    Well most countries have living constitutions. I think its only natural to update the constitution every once in a while, a document from 1848 predates gay rights for instance.
- uiri 9y ago
  I am neither American nor a lawyer, but I have looked at the US Constitution a bit so I'll take a stab at these. Of course, an actual scholar of the US constitution would have more correct answers: 1. Article Five of the US Constitution specifies the manner in which the constitution can be amended. It expressly prohibits any amendment that would deprives a state of its equal suffrage in the Senate. Therefore, the Constitution itself prevents certain amendments to the Constitution. It stands to reason that, should you wish to change the Senate away from an equal number of Senators per state, you would need two amendments. One to allow such an amendment and then a second which would itself be that amendment. That the Constitution provides a process for amendment is proof that its framers intended for it to be amended. That they specifically laid out certain things which could not be amended indicate that they intended for it to be possible to amend anything and everything else. That the amendment procedure was itself not included in the list of unamendable things includes it in the list of amendable things. Therefore the list of unamendable things is in the scope of amendments as something which may be amended. Of course, later amendments may repeal earlier amendments. 2. If a state ratified two conflicting amendments - A and B - I would say that the latter of the two ratifications would take precedence. Now, if Congress passed A first and then B, and B was ratified by enough states first and then A was ratified by enough states, I would say that you would have a nice little Constitutional crisis on your hands. I think the rational solution would be to follow the Convention process for amendments as laid out in Article 5. That way the states can sort it out definitively, federal Congress be damned. 3. No. 4. Since I mention it earlier as a way to solve the conflicts between the 13th and Corwin amendments, the plain reading of the text suggests that each state legislature applies to hold a constitutional convention. The natural body to collect and manage these applications is Congress itself. When Congress has 2/3 of the States applying for such a convention they will determine the process for the convention.

What happens if the slavery one gets ratified? Does it invalidate the 13th? Does the 13th invalidate it? Does it become a constitutional crisis and we duke it out to figure out which one wins?

tptacek 9y ago

This is approximately as interesting a question as "what would happen if a new amendment authorizing slavery passed Congress and was ratified by three quarters of the states?"

exolymph 9y ago
You don't think that's an interesting hypothetical? Do you think interest implies endorsement?

tdhoot 9y ago

The later amendment always wins. See, for example, the 18th amendment which was later repealed by the 21st amendment.

baddox 9y ago
I believe you that the later amendment would win, although that’s not necessarily evident from the example of the 21st amendment, since its text explicitly repeals the 18th amendment and thus doesn’t leave the ambiguity of two contradictory texts in place. A better example might be the 17th amendment, which changes the way that US senators are elected as described in Article I.
astura 9y ago
I wouldn't use that as an example, the wording of the 21st amendment is "The eighteenth article of amendment to the Constitution of the United States is hereby repealed," not "the manufactuer, sale, and transportation of intoxicating liquors should not be prohibited." It's my opinion that if there was a new amendment that would be in direct conflict with the other amendments without expressly repealing them the conflicting amendment it would be a constitutional crisis and it would cause political instability. It would be, at the very least, go to the Supreme Court.
- philwelch 9y ago
  That's empirically not the case--lots of boring procedural stuff in the Constitution was repealed by amendments without having to specifically use the word "repeal" in the amendment itself, e.g. the election of Senators, when Congressional and Presidential terms begin and end, the succession procedure for the Vice President to assume the Presidency, and so forth.
  - adrianratnapala 9y ago
    Yes, new laws overriding old ones is just common sense. Where I imagine you could get a crisis is if an amendment passes and then some (powerful) people then say "oh by the by -- did you notice that it implicitly limits X part of the bill of rights". Still this is not very likely. Not because people in the US don't want to wind back fundamental rights. But because they have easier ways of doing it than passing amendments -- even sly ones.
    - philwelch 9y ago
      Also, this is kind of the point of doing so by amendment. The old idea of amending the constitution to outlaw same-sex marriage was designed to forestall an Obergefell v. Hodges type decision. On the other side of the aisle, constitutional amendments around campaign finance or corporate personhood would supersede the interpretation of the First Amendment applied in Citizens United v. FEC.
jacurtis 9y ago
Yes, the later amendment would win. That is the reason for the ammendments in the first place, is to repeal, modify, or add to the constitution. So if it were to get ratified than it would trump (no pun intended) the earlier amendments or constitutional elements that it contradicts. Of course before you lose too much sleep over this thought, remember that we could then pass another amendment to repeal that amendment which repealed the other one. Life will find a way.

Sniffnoy 9y ago

Whie tptacek has basically the right answer here, it's worth reading the actual text of the Corwin Amendment: > 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. What the Corwin Amendment does, then, is ban further amendments that would abolish slavery. But since the prohibition against slavery is now already part of the constituion, it would, AFAICT, not be affected by the hypothetical ratification of the Corwin Amendment.

curun1r 9y ago
> is ban further amendments I'm not sure it even does that. Reading the passage you quoted, it seems like it only bars amendments that give Congress the power to interfere with state slavery laws. But the amendment that freed the slaves didn't give Congress that power, it just freed the slaves itself. It sounds like The Corwin Amendment only covers attempts to abolish slavery that wouldn't go through the process of ratification by the states.
adrianratnapala 9y ago
The slave states would have have said that this was just bolstering an existing, common understanding that the US was voluntary association of states, and hence even the US constitution could not override basic state powers. And before the Civil War, that understanding might well have held in both the North and the South. Indeed northern states often thumbed their noses at the federal fugitive slave laws -- including the Constitution. By the time of the war though, the political state of play was that state sovereignty and the abolition of slavery were at loggerheads -- and abolishing slavery was far more important.

jcranmer 9y ago

There's a lot of constitutional theory that basically falls under the category of "it's never mattered, so we've got no idea how to interpret what-if scenarios." The Corwin Amendment falls under that in several different ways: * Does an amendment to the Constitution have the power to prevent amendments to the Constitution? If so, do later amendments have the ability to overturn this limitation of power? * Would the amendment actually have any effect, since the 13th amendment was enacted before the Corwin Amendment? That is, is the amendment implicitly retroactive? * Is it possible for states to rescind their ratification? For that matter, can Congress rescind its ratification? * For bonus points, try to figure out what the rules are for the Article V convention to amend the Constitution, in particular in deciding whether or not we are supposed to be having one right now.

bdhe 9y ago
Also, beyond a certain point, there isn't anything sacred about the Constitution or its Amendment process in so far as a majority of the collective populace agrees to it and there are powerful bodies enforcing it. Ultimately, as we have seen countless times including now, in China, and 2 years back in Turkey, might is right and any constitution can be amended arbitrarily under the right circumstances by the right people with the right power and control over armies.
- Feniks 9y ago
  Well most countries have living constitutions. I think its only natural to update the constitution every once in a while, a document from 1848 predates gay rights for instance.
uiri 9y ago
I am neither American nor a lawyer, but I have looked at the US Constitution a bit so I'll take a stab at these. Of course, an actual scholar of the US constitution would have more correct answers: 1. Article Five of the US Constitution specifies the manner in which the constitution can be amended. It expressly prohibits any amendment that would deprives a state of its equal suffrage in the Senate. Therefore, the Constitution itself prevents certain amendments to the Constitution. It stands to reason that, should you wish to change the Senate away from an equal number of Senators per state, you would need two amendments. One to allow such an amendment and then a second which would itself be that amendment. That the Constitution provides a process for amendment is proof that its framers intended for it to be amended. That they specifically laid out certain things which could not be amended indicate that they intended for it to be possible to amend anything and everything else. That the amendment procedure was itself not included in the list of unamendable things includes it in the list of amendable things. Therefore the list of unamendable things is in the scope of amendments as something which may be amended. Of course, later amendments may repeal earlier amendments. 2. If a state ratified two conflicting amendments - A and B - I would say that the latter of the two ratifications would take precedence. Now, if Congress passed A first and then B, and B was ratified by enough states first and then A was ratified by enough states, I would say that you would have a nice little Constitutional crisis on your hands. I think the rational solution would be to follow the Convention process for amendments as laid out in Article 5. That way the states can sort it out definitively, federal Congress be damned. 3. No. 4. Since I mention it earlier as a way to solve the conflicts between the 13th and Corwin amendments, the plain reading of the text suggests that each state legislature applies to hold a constitutional convention. The natural body to collect and manage these applications is Congress itself. When Congress has 2/3 of the States applying for such a convention they will determine the process for the convention.