I am curious that, when the constitution is amended, can the Supreme Court reject the amendment via the judicial review process by citing the amendment is unconstitutional and says the negation (by the correct semantic representation) of the amendment is now in the Constitution?

If can't, does it mean the process of amending constitution is a power that is not governed by the constitution and so out of the reach of the Supreme Court decision. As a direct result, the Supreme Court justice can only interpret the amendment via the precedent constructed by how the people who amend the constitution interpret, and so the judicial review process cannot interpret law in the sense of "creating precedent".

If can, does it mean the current, existing US citizen does not have the ultimate interpretation about Constitution since theoretically the justice can reject and negate it by creating a precedent vacuously? (In a philosophical sense, I assume a Constitutional Amendment is not decided (logical consequence) by the existing Constitution, and so there must be someone to create the precedent to decide how to use the law, which can be done by the judicial review by saying the amendment is unconstitutional is vacuously True by the pure definition of "not a logical consequence")

I know it's a game of words and extremely like some form of Godel's Incompleteness proof but the self-reference property of judicial review and strong arithmetic property of principle of precedent at least in a logical sense may have unexpected behavior.

3 Answers 3


While the Supreme Courts of Germany, Honduras, India and Italy have asserted such authority, the U.S. Supreme Court's justiciable decisions about a U.S. Constitutional Amendment are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the U.S. Constitution, which states:

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.

Usually, U.S. Supreme Court litigation over a constitutional amendment would be over whether the process of Article V has been conformed to in a particular case (which has been litigated in several prior cases).

The U.S. Supreme Court has held, however, in Coleman v. Miller, 307 U.S. 433 (1939), that even some procedural issues are political questions for Congress to resolve that are non-justiciable, in part because the mode of ratification is expressly delegated to Congress in Article V. As the summary of Coleman at the link above explains:

In an opinion by Chief Justice Hughes, the Court held that the Kansas legislators had standing to sue, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress. With respect to the whether the Kansas legislature’s previous rejection of the Child Labor Amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.”

But, with respect to the language in bold in the quoted language of Article V above, the U.S. Supreme Court could determine that a constitutional amendment is unconstitutional. This narrow ground, however, is the sole basis upon which it may do so.

  • 1
    The ratification of the 27th amendment after 202 years is perhaps worth mentioning. I don't think SCOTUS has ever had to rule on it, but it became an application of the Coleman precedent in that Congress expressly voted to accept it had been validly ratified. Dec 15, 2021 at 1:09

The US Supreme Court cannot declare a Constitutional Admendment unconsitutional. Once it has been ratified, it is the Constitution, equally with all other parts, including the original document.

Generally, if there is conflict between the new amendment and the prior version of the Constitution, the new Amendment takes precedence (and is also generally explicit about what it is overriding, in the 27 the we have had).

  • Really appreciate for the response. TBH, I have a similar belief. However, given the process of amending constitution cannot be challenged by the Supreme Court. In the US, is there any legal way to challenge the process of amending constitution via an organization by a decisive judgement? Dec 14, 2021 at 22:19
  • I don't think the "newer takes priority" line is accurate. SCOTUS has heard arguments before that the 14th amendment effectively eliminated the federal structure and created a single national government that everything was strictly subordinate to. While the justices more or less acknowledged there was validity in such an interpretation, their actual ruling was that because the 14th amendment had not explicitly repealed the federal structure of state and national governments that this structure was still valid. Conflicting parts of the constitution are held in balance, not time priority. Dec 15, 2021 at 0:59
  • @LambdaDelta34 From time to time all courts need to, in the course of other things, opine on whether or not particular language is or is not a part of the U.S. Constitution. Generally, this has been a trivial and uncontroversial point upon which there is consensus. But even if SCOTUS did not take on the issue in the form of a Declaratory Judgment action or some such, at some point a court might need to decide, for example, if the 27th Amendment was actually duly adopted, in a proper case. Courts defer to Congress to the extent possible but a court necessarily decides even if there's a dispute.
    – ohwilleke
    Dec 15, 2021 at 1:39
  • @LambdaDelta34: There is indeed judicial review of the process. That's not what your question asked about. The finding in such review would not be whether the content of the amendment is unconstitutional, but whether it has been approved, which has nothing to do with its content.
    – Ben Voigt
    Dec 15, 2021 at 16:22

A Consitutional Ammendment cannot, by definiton, be "Unconstitutional," as long as it was enacted properly.

A Constitutional Ammendment can be (and often are) in serious conflict with other elements and Ammendments of the Constitution. The interpretation of conflicts is the job of the Supreme Court.

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