The Amendability Paradox: Could an Unamendable Amendment Be Amended?

Abstract

Imagine an America in which there was enough support for a policy to pass a constitutional amendment to that end. Further, imagine that the drafters of this amendment wanted to ensure that no future generation could revoke the policy. Therefore, the drafters of this amendment included the following provision: “This amendment shall be unamendable. Any attempt to amend this amendment will, therefore, be unconstitutional.” If such an amendment were duly proposed and ratified based on Article V requirements, would the purportedly unamendable amendment truly be unamendable? This Article examines the evidence for and against the enforceability of such an amendment.

Topics covered include issues of amendability generally, existing unamendable provisions in the U.S. Constitution, the near passage of the Corwin Amendment — which purported to be unamendable, relevant Supreme Court precedent, informal unamendability, pragmatism, the option for a second constitutional convention, whether unamendability violates democratic principles, the analogy of Congress being prohibited from binding future Congresses, and less extreme alternatives with similar effects. This Article then concludes by considering the related issues of how pragmatic such an amendment would be and the likelihood of a Supreme Court enforcing it.

Keywords: Article V, unamendability, amendments, Corwin Amendment, informal unamendability