Can the Constitution be amended to eliminate the Bill of Rights?

[jody]

My question is prompted by DU thread http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x3479758 and the related thread, http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x176528

In the first thread, some posts argue that the Constitution can be amended to repeal an inalienable right protected by the Bill of Rights.

AL, AR, KY, LA, MI, ND, OH, PA, and TX have state constitutional barriers preventing their legislatures from repealing protection of inalienable rights. Apparently that would include voting on an amendment to change the Constitution removing federal government protection of inalienable rights and thus influence ratification of such proposed amendments.

In a broader sense, the question is can the Constitution be amended to eliminate the Bill of Rights?

The preamble to the BOR states, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The BOR has been interpreted as a binding condition to the states ratifying the Constitution.

If that is true, then how can the BOR be repealed without abolishing the Constitution?

Stated like that, the issue concerns civil liberties enumerated in the first eight Amendments and un-enumerated ones protected by the Ninth Amendment.

That challenges the notion of inalienable rights that the federal government is supposed to protect minorities against the tyranny of a majority.

[Faygo Kid]

1. Yes. The Bill of Rights are (is?) the first 10 amendments to the Constitution.

The very definition of "amendments" contemplates their repeal. Prohibition was an amendment repealed. Every one of the amendments that make up the Bill of Rights is no different than that amendment.

[jody]

3. You state your opinion but do you have proof? As I asserted, IMO the BOR was a condition of

ratifying the Constitution.

If that is true, would not repealing the BOR be tantamount to repealing the Constitution?

[Faygo Kid]

4. Proof? What are you talking about?

The Bill of Rights make up the first 10 amendments to the Constitution.

You obviously have a bug up your rear end about this, and nobody is going to convince you otherwise. I won't get into my credentials, because they don't matter, but I know what I'm talking about. Your mind is made up, but you are wrong. Nevertheless, enjoy, and next time you post, think about having a discussion, rather than conducting a lecture.

[jody]

6. You continue to state your opinion without proof. Is God whispering to you like to Dubya? n/t

[Faygo Kid]

7. What the Hell kind of proof are you looking for? They are AMENDMENTS, fer chrissakes.

Like I said, you have your mind made up.

I am replying, apparently, to a nutjob. Off to spend a more productive Saturday than this garbage.

[baldguy]

2. Sure, as long as the proposed amendment passes all the requirements.

But why bother to go through the trouble of changing the Constitution when its so much simpler to ignore it.

[pscot]

5. Shhh!

;

[kdmorris]

8. The bill of rights is not just one amendment

It's several different items. Yes, they can be eliminated, by getting 2/3 of the states to ratify another amendment appealing the one of the bill of rights. That's what happened with Prohibition.

I'm not sure what your issue is. What proof would you require that you can add amendments to change or repeal any of the bill of rights? It's not like those are the only amendments that matter. If you just stick to those "unalienable rights", guess women don't get to vote anymore and we can own slaves again.

[jody]

9. Ratification requires 3/4 of the states. Nine states prohibit their legislatures from

voting to abolish rights enumerated in their constitutions that are identified as inalienable to an individual. Those states are AL, AR, KY, LA, MI, ND, OH, PA, and TX.

Those enumerated rights are essentially the same as enumerated in the Bill of Rights.

Among my questions is how can those nine state legislatures vote to abolish any of the rights enumerated in the first eight amendments when their state constitutions explicitly prohibit such an action?

Behind all of this is the very meaning of "inalienable right" which is one that cannot be given away by an individual, e.g. in the U.S. a person cannot willing become a slave.

I know SCOTUS says governments can place reasonable restrictions on a right, e.g prohibit yelling fire in a crowded theater when no fire exists, but government cannot completely prohibit freedom of speech.

I understand governments have the power to take away an inalienable right but government does not have the authority to permanently take away that right nor can an individual give away that right.

Among exceptions noted by SCOTUS would be when an overwhelming benefit to society would result and that would be to an individual or group but not society as a whole, e.g. imprisonment, or where inalienable rights of all are limited for a period, e.g. during WWII.

ON EDIT ADD
I don't believe drinking alcoholic drinks is listed as an inalienable right among those rights enumerated in the various state declarations of rights.

To that extent, I don't believe prohibition and it's repeal is part of the issue I raise.

[kdmorris]

10. I was pointing out that the amendments are NOT

inalienable rights. They are CHANGES that were made to the constitution. And the Bill of Rights are just the first 10 amendments that were ratified (there were two other amendments that didn't get ratified at that time).

Prohibition is an amendment to the constitution(the 18th) which was repealed by another amendment (the 21st). As you stated, drinking alcohol is NOT an inalienable right. I read those state laws that you posted, but none of them say anything about the Bill of Rights. They speak of inalienable rights, which the constitution says is "life, liberty and the pursuit of happiness".

The original question you raised was "what happens if a change to the constitution directly contradicts another?". The answer to that is that the Supreme Court would determine which of those contradictory laws should be followed.

The part that seems to be getting bogged down is that the Bill of Rights is NOT a list of inalienable rights. It is a list of Government granted rights that may or may not alienable. I would argue that the right to Free Speech SHOULD be an inalienable right, but it isn't necessarily. You might argue that the right to own a gun is inalienable, but it also is subject to the interpretation of a government body. As you also stated, you cannot yell "Fire" in a crowded theater, which means that there are times when your right to Free Speech can indeed be taken away.

The constitution talked about Liberty, but it was agreed at the time that this was an inalienable right if you were BORN free (which was pretty much not what was practiced, since so many Africans were born free in Africa, then kidnapped to be enslaved here). The Supreme Court upheld this law in the Dred Scott case. So, it can be seen here that what is considered inalienable is completely up to the government to decide. I agree that the government shouldn't have the authority to "take away a right", but they do it all the time.

I guess the issue is: What do you consider to be an unalienable right (and just saying "all of the bill of rights" is cheating. Is it just the Bill of Rights? Are all the amendments inalienable?)? What you and I come up with might be completely different, but what matters is what the LAW states is an inalienable right.

http://en.wikipedia.org/wiki/Inalienable_rights Some reading for you, if you want.

Edited to add: Thanks for correcting the number of states. I couldn't remember if it was 2/3s or 3/4ths and was too lazy to look it up.

[jody]

11. Obviously I failed to state my question clearly. Nine states define the rights enumerated in the

Bill of Rights as inalienable rights and their state constitutions expressly forbid their legislatures from voting to abolish those inalienable rights.

Those state legislatures cannot legally, according to their state constitutions, vote to repeal a right enumerated in the Bill of Rights.

How can the Constitution be amended by 3/4 of the state legislatures voting to repeal a right enumerated in the BOR when at least nine states expressly forbid a vote to abolish those rights?

EDIT TO ADD
The Constitution uses 2/3 and 3/4 in the same passage:

"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;"

:hi:

[kdmorris]

12. Oh, well if that is the question...

Those nine states would not be able to ratify the amendment to repeal any of those rights which their state constitution forbids them to ratify.

But since you only need 38 (literally 37.5, but I don't think they will let half a state count) states to ratify an amendment to the constitution, if 38 states thought that repealing the First Amendment was a swell idea, then those 9 states could still vote no (thereby obeying their state constitutional law) and still have to live under the new federal constitutional law.

Is that what you are asking?

[jody]

13. Yes, thanks for having the patience and taking the time to discuss my question. Given the

restrictions that exist in the nine states I cited, would the 14th Amendment apply to the other 41 states such that they would be equally restricted in voting on an amendment to repeal a right enumerated in the Bill of Rights and also included in states' declarations of rights as inalienable rights?

I know SCOTUS in general says it's the responsibility of congress to decide what is a "republican form of government" but SCOTUS has made one or more decisions that seem to involve the 14th and the undefined "republican form of government".

Again, many thanks for the discussion. :hi:

[kdmorris]

14. Unfortunately,

I don't think that the individual 9 states would have any power over the other 41 states. I would love to see that argued in front of the SCOTUS, though. I mean, Bush got away with using the 14th amendment to steal the presidency, why the hell not try to use it to save our Bill of Rights?

[jody]

15. Thanks for the exchange and have a wonderful weekend.

:pals: