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Roderick Threats
by on May 9, 2019

Originally posted on theblackpatriot.com

The United States Constitution is surprisingly tough to amend.  As spelled out in Article V, the Constitution can be amended in one of two primary ways. First, amendment can take place by way of a vote of two-thirds of both the House of Representatives and the Senate accompanied by means of a ratification of three-fourths of a number of state legislatures or conventions in three-fourths of the states (ratification via thirty-eight states would be required to ratify an amendment today).  This first approach of change is the only one used to date, and in all but the case of the 21st Amendment, state ratification took place in legislatures instead than state conventions.  Second, the Constitution would possibly be amended via a Convention called for this reason via two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified through three-fourths of the state legislatures (or conventions in three-fourths of the states). 

Because any amendment can be blocked by using a mere 13 states withholding approval (in both of their two houses), amendments do not come easy.  In fact, solely 27 amendments have been ratified considering the fact that the Constitution grew to become effective, and ten of these ratifications occurred almost immediately--as the Bill of Rights.   The very challenge of amending the Constitution significantly will increase the importance of Supreme Court decisions deciphering the Constitution, because reversal of the Court's choice by way of amendment is unlikely barring  in cases when the public's disagreement is severe and close to unanimous.   Even unpopular Court opinions (such as the Court's protection of flag burning) are in all likelihood to stand unless the Court itself changes its collective mind.

The Court has at various times considered the validity of constitutional amendments.  Importantly, the Court has considered the method of proposal and ratification, as well as the constitutionality of the subject matter of the amendment, to be a justiciable--and, therefore, not a "political"--question.  In the Hawke v Smith (1920), for example, the Court upheld Ohio's ratification of the Eighteenth Amendment over objections that the Ohio Constitution provided for a referendum on the issue by voters that might have overridden the Ohio legislature's ratification of the amendment.  The Court concluded that the federal law set for in Article V providing specifically for ratification by state legislatures preempted conflicting state procedures for ratification.  Also, in the National Prohibition Cases (1920), the Court generally upheld the validity of the Eighteenth Amendment, rejecting arguments that a prohibition on the distribution and possession of alcohol was a constitutionally impermissible subject matter for a constitutional amendment.

Two more recent cases included in our readings consider the impact of the Twenty-First Amendment repealing the Eighteenth Amendment. two In the first case, LaRue v California (1972), the Court concludes that the Twenty-First Amendment qualifies the First Amendment, for this reason allowing states to regulate expression in businesses that serve alcohol, even when such restrictions might violate the First Amendment if utilized elsewhere.  In 1996, however, in the 44 Liquormart, Inc. v Rhode Island, the Court disavows its beforehand conclusion and makes clear that the Twenty-First Amendment, whilst it can also enable restrictions on alcohol that would otherwise violate the Commerce Clause, in no way qualifies the reach of the First Amendment.  The Court consequently concludes that Rhode Island's restrictions on marketing the fee of alcohol violate the First Amendment.

In 2005, in Granholm v Heald, the Court held that Section 2 of the 21st Amendment did no longer give states the power to discriminate towards out-of-state wine retailers in methods that would otherwise violate the Commerce Clause.  Ruling 5 to 4, the Court struck down a Michigan law banning out-of-state wineries from selling wine to Michigan residents over the Internet.  Michigan allowed Michigan wineries to immediately ship to buyers but prohibited non-Michigan wineries from doing the same. two The Court noted, however, that the 21st Amendment in reality gave the nation the strength to ban ALL direct shipments of wine (or other alcoholic beverages) to consumers if it selected to do so. two Four dissenters argued that the history of the twenty first Amendment proved that it was intended to knock out legislation of alcoholic liquids from the everyday prohibitions on state discrimination beneath the Commerce Clause--however erroneous that policy might seem today.

Post in: Politics
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