Regarding unconstitutional amendments, it seems (to me a non-lawyer) that, if that can’t be done, then the Courts role in interpreting it could have the same effect. In other words, they may have to interpret an ambiguity or contradication as to which one overides. This would in effect be the same as if they could say an amendment was unconstitutional.

That make sense?

This is a tricky thing.

According to Article 5 of the Constitution, there are only two ways to amend:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

However, either way, we are talking about a Legislative process. In theory, let’s say that an amendment is proposed and fully passes the amending process that abrogates rights as specified within the 9th and/or 10th Amendments (to be current). Since the People and/or the States have spoken, that would seem to end it. However, what happens when that amendment is clearly seen by critics as deprecating another Amendment in the Constitution? Then you have to involve the Judiciary to settle the matter.

In reality, one would hope that since the amending process is so onerous and would require a practical super-majority to pass, critics of such an amendment would be able to have their voice heard in the process. Nevertheless, it is theoretically possible for the amending process to produce an unconstitutional amendment!

-Phil

Anyway it does not matter as the supreme court will show that Leo is correct.

“Something to consider on the Natural-born issue: Based on Common Law the relationship between “citizen” and “Natural-born Citizen” is a follows:

1. The Class “Citizen” refers to all citizens.
2. There are two subclasses of “Citizen”: “Natural-born” and “Naturalized”. If you sre s citizen you are either natural-born or naturalized.”

Perhaps based on Common-Law, but I understand the Constitutional way to describe it is to say the 2 classes are Native-born and Naturalized. Of the Native-borns, there are those born on the soil with 1 or both parents non-citizens and those born on soil with both parents citizens. The latter being the natural-borns.

That make sense?

Let’s all read it again:

As I thought about it, Chief Justice Marshall’s voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

This must kill the argument that being “a 14th Amendment citizen” has the same effect on Presidential eligibility as being a “natural born citizen”. If being a “citizen” had the same exact effect as being a “natural born citzen” then the clause would have no effect. As stated by Chief Justice Marshall, “such a construction is inadmissible.”

With respect to amendments, JeffM’s original comment implied that it is possible for an amendment to be declared unconstitution, which is, by definition, impossible.

And JeffM’s original comment also implied that someone had brought such a such case.

Your statement: “If the natural born citizen issue were ever heard on the merits, the court hearing the case must recognize that a presumption exists requiring the natural born citizen clause to have independent effectfrom all clauses which just refer to “citizen”.”

To further enforce the claim of clause effect, consider the two clauses of eligibility: Thus, 1) “No Person except a Natural Born Citizen, or 2) a Citizen of the United States, at the time of the Adoption of this Constitution,….”

The distinction between the two clauses speaks for itself.

The 18th amendment was specifically repealed by the 21st. It was not ruled invalid by the Supreme Court. The Court has no power to “undo” an amendment.

While you are correct that the Judiciary has no inherent “energy” to bring cases unto itself, the fact that nobody has brought any number of potentially unconstitutional issues before the Court doesn’t necessarily make said issues constitutional.

The overall issue is making the law expanded to the point that it covers dealing with exactly what eligibility is and, subsequently, providing one route to enforceability. Since there are so many theories floating around of exactly what a “natural born citizen” is, it seems to me that it would be good to get such codified before going any further. And that’s going to take more than simply a comment on an Internet site.

-Phil

Excellent post. I really haven’t paid much attention to the whole quo warranto thing as doesn’t his whole argument rest on a tortured interpretation of Article II, clause 6 that Congress has the power to remove the president other than for impeachment.

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”

Aren’t there a bunch of reasons why Donofrio’s interpretion isn’t plausible:

(i) It isn’t the best drafted clause, but the most natural reading (and the universal historical understanding) of the provision is that the first part provides for automatic succession for a vacancy in just the presidency and the second part authorizes congress to provide a law for succession for a vacancy in both the presidency and vice presidency (as in both are killed at once). This reading makes perfect sense and clauses should be given their most natural reading.

(ii) If Donofrio’s reading was plausible, Death and Resignation would not be grouped with Removal in the second part since, with respect to Death and Resignation, it only makes sense to say Congress can provide for law of succession, not death or resignation itself. It’s absurd to read the phrase as authorizing removal itself rather than law of succession in the case of removal when removal is in a string of events that can only only read to provide for a law of succession in the case such events happen. I wouldn’t try this type of interpretation of a law school exam.

(iii) The rest of the clause other than the few words referanced by Donofrio clearly deals with succession so it makes no sense contextually that a substantive power of removal would be in middle of this clause.

(iv) The second part of the clause by its terms only relates to removal of both the president and the vice-president at once as it says “and” not “or” and a reading that it can apply to just the president doesn’t make sense as succession in the case of death or resignation is already provided by the first part of the clause and, with respect to death or resignation, the second part can only deal with succession. Why would congress be provided power to remove only both but not one?

(v) Donofrio’s reading presumably gives congress the power to remove the president for any reason as, in his reading, the text has no limitation. Why would the founders then include an impleachment clause that would be superfluous? What would remain of separation of powers with this reading? It is unlikely the founders would have been so sloppy as to have text provide for unlimed power of removal and leave it to others to infer some kind of limitation.

(vi) I doubt there is any historical support for this. I thought orignalists laughed at claims that one has discovered a new meaning of the constitution after 220 years that no one ever thought of before.

Seriously, I am missing something or is this a completely implausible reading.

That is untrue regarding amendments being Constitutional. Look no further than Amendment XVIII, which was repealed by Amendment XXI before the Supreme Court could deem it Unconstitutional based on violation of the Commerce Clause found in Article I of the U.S. Constitution.

Some have also questioned Amendment XVI

The 18th amendment was specifically repealed by the 21st. It was not ruled invalid by the Supreme Court. The Court has no power to “undo” an amendment.

Donofrio’s argument that the main body of the Constitution can trump something in an amendment is weak. If anything, amendments have the power to trump the original text. For example, amendments have changed the way we elect presidents and senators over the years. By using Donofrio’s argument to the extreme one could try to say that women should not vote and slavery would still be allowed. The 14th amendment clarified the meaning of citizenship and stands by itself.

No court ever held the 18th Amendment was unconstitutional, and its subsequent repeal by the 21st Amendment in no way implies the 18th Amendment was unconstitutional (rather, it was just a bad idea).

Some have also questioned Amendment XVI

The 16th Amendment is not unconstitutional, and there is a plethora of pejorative descriptors for those who advocate otherwise.

So, again, there is nothing “unconstitutional” about the 14th Amendment, regardless of the (perceived) contradictions it may have created with other portions of the constitution.

>>>no he isn’t, go back and read it again.