Most citizens naively take the United States Constitution at face value. As such, most citizens believe that in order to amend the Constitution, the process outlined in Article Five must be followed. That process requires that both houses of Congress approve the amendments by two-thirds votes. In addition, three-fourths of the states must ratify amendments before they become law.
Most citizens are not aware that the United States Supreme Court purports to be able to amend the Constitution without any process other than a majority vote. Reportedly, the late Supreme Court justice William Brennan would ask new law clerks how the Constitution is amended. After the law clerks responded with the provisions of Article Five, Brennan would hold up his hand with all five fingers outstretched, indicating to the law clerks that five votes of Supreme Court justices were sufficient.
A recent example of this occurred recently when the Supreme Court declined to review a set of cases involving what should be basic Fifth Amendment rights and their application to the states.
Prior to 1868, the Supreme Court took the position that the Bill of Rights only applied to the federal government, but not the states. After the Civil War, the continued blatant discrimination against African Americans by the states made the application of the Bill of Rights to the states critical. Under that backdrop, the Fourteenth Amendment was adopted.
However, rather than being the end of disputes about the application of the Bill of Rights to the states, the Supreme Court has continued to take the position that only it can decide which of the Bill of Rights apply to the states. The Supreme Court has coined the term “selective incorporation” to apply this practice.
Incredibly, the Supreme Court did not undertake to “amend” the Constitution to even apply the Second Amendment right to keep and bear arms to the states until 2010 in the case of McDonald v. City of Chicago. 561 U.S. 742 (2010).
The Fifth Amendment enumerates five separate rights. The very first of these rights states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”.
Notwithstanding the Fourteenth Amendment, the Supreme Court took the position in 1884 that the grand jury right of the Fifth Amendment did not apply to the states. Hurtado v. California, 110 U.S. 516 (1884). Recent attempts have been made to seek review of this decision and to overrule “selective incorporation” in general, and Hurtado in particular, as being contrary to the plain language of the Fourteenth Amendment. The Supreme Court has repeatedly refused to do this.
It is unclear at this point how United States citizens can curb the seemingly unlimited authority that the Supreme Court has purported to claim for itself. Review our legal resources to find more information.
Thanks to our friends and contributors from Jensen Justice for their insight into the Constitution.