Legal Question in Constitutional Law in Nebraska

Re: can congress repeal the bill of rights?

The Bill of Rights is part of the Constitution (specifically, it is the first ten amendments) and, like any other part of the Constitution, can only be changed by amendment or by a constitutional convention. Congress cannot accomplish either of these things by itself.

Before an amendment can be added to the Constitution it must be approved by two thirds of both the Senate and the House of Representatives and must then be ratified by three fourths of the states (which works out to 38 of the 50).

The Constitution itself says nothing about a time limit on this process, which is why the Twenty-Seventh Amendment (dealing with pay raises or reductions for members of Congress) was properly ratified in 1992 even though it had been approved by the House and Senate in 1789. States had been slow to approve it, and the number of state approvals necessary to ratify it kept increasing as more states were admitted to the union. Today most serious proposed amendments include a built-in deadline (typically five to seven years) for ratification.

An amendment would not actually remove the text of the Bill of Rights from the Constitution; amendments are simply added at the end of that document. Amendments can -- and often do -- repeal other portions of the Constitution which came before it. An example of such a change is the Twenty-First Amendment, which was ratified in 1933 specifically in order to repeal the Eighteenth Amendment, which had instituted prohibition in 1919. The Eighteenth Amendment is still part of the Constitution's text, but it no longer has any effect.

A constitutional convention would have broader powers and could theoretically decide to scrap the Constitution entirely and replace it with a new one. (Many of the founding fathers expected this to happen periodically, and would be quite surprised to learn that the original Constitution remains in effect after 217 years.) The Fifth Amendment requires Congress to call a convention upon the application of two-thirds of the states, though this has never happened. Like the usual amendment process, the changes proposed by a convention would only take effect upon ratification by three quarters of the states.

Interestingly, the President has no role in either of these processes. His political influence will often make a big difference in a proposed amendment's fate, but his approval is not required. Governors likewise have no role to play; only state legislators can ratify an amendment or request a convention.

Correction re: repeal of Bill of Rights?

My original response contains an error I need to correct. It said "The Fifth Amendment requires Congress to call a convention upon the application of two-thirds of the states, though this has never happened." This requirement is actually found in Article V of the Constitution and not in the Fifth Amendments. I apologize for any confusion my error may have caused.