Its been said that the SCOTUS could 'strike down' an Amendment as unconstitutional. -- And that exact point was argued before them in 1919, in a move to nullify the 18th.
"-- The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920.
Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases.
A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer.
Root asserted that the Eighteenth Amendment was simply unconstitutional.
Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him."
Root gave a memorable peroration:
" --- If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist.
Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench." ---"
What was the result of that argument?
It seems to me that the Constitution, by definition, is Constitutional. If the process is followed correctly, the resulting amendment must be Constitutional.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
The Root quote tries to diminish the effort required to amend the Constitution so as to make amending the Constituion sound like a commonplace circumventing of Congress. The very purpose of amending the Constitution is to change the limits already present in it, given that the Constitution was designed as a limiting powers document.
I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.
-PJ