In Lincoln, chief justice says law, not politics, drives Supreme Court’s rulings (John Roberts: NE)

Omaha World-Herald ^ | Friday, September 19, 2014 2:30 PM | Joe Duggan

[Bubba Ho-Tep]

We can CONSENT to some level of taxation -- agree via social contract to give up some portion of our lives for the good of the Collective. But when government leave us no choice, when it coerces money from us at the point of a gun, then yes, it is involuntary servitude and tyranny at its worst.

But isn't a constitutional amendment the very mechanism of consent you describe?

[IronJack]

Ratification of an amendment doesn’t exempt the amendment from constitutional review. While ratification does constitute assent, that alone isn’t enough to ensure consistency with existing provisions. We could, for example, ratify an amendment forbidding women from voting. But since that contradicts the 19th, the Court would have to strike down one or the other. Look at the 18th and 21st. The latter was enacted to specifically repeal the former. It had to or it would have set up an internal contradiction.

[Bubba Ho-Tep]

Look at the 18th and 21st. The latter was enacted to specifically repeal the former. It had to or it would have set up an internal contradiction.

On the other hand, the 12th Amendment does not state that is is specifically repealing Article 2, Section 1 and the 17th Amendment does not explicitly state that it is repealing Article 1, Section 3. So apparently amendments can supersede constitutional clauses without demanding that the court step in to resolve the contradiction.

Article 5 states that, once ratified, an amendment "shall be valid to all Intents and Purposes, as Part of this Constitution." To claim that it is subject to court review and open to being stricken as unconstitutional means that anything in the constitution is open to being declared unconstitutional.

[IronJack]

Ultimately, that is the case. If I can bring a strong enough argument that one amendment violates another constitutional provision, the Court can:

1) Decline to hear the case, which would leave an untenable ambiguity as to precedence;
2) Rule that there is in fact no contradiction established by the creation of inimical elements;
3) Rule that there is a contradiction, which negates one or the other of the conflicting elements.

The last outcome, in effect, declares some provision of the Constitution unconstitutional. I would think precedence would always lie with the earlier provision, but as you point out, in some cases the more recent decision rules.