Legal Question in Constitutional Law in New Jersey

Let's say that one amendment or clause of the Constitution was in conflict with another amendment or clause. For example, even though this is probably not true, let's say that the voting age of 18, set by the 26th Amendment, violated freedom of expression and the right to petition government, which are protected by the 1st Amendment. What would happen? Would both Amendments be considered unconstitutional?


Asked on 4/06/11, 7:57 am

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Constitutional amendments can never be unconstitutional, by definition.

Where two amendments are in conflict, the later one might expressly state that it is intended to supplant the earlier one. The 21st Amendment, for example, ended prohibition by expressly repealing the 18th Amendment.

Where the latter amendment does not expressly address the conflict, the courts would probably have to decide which takes priority. There are several criteria they would assess. They would probably examine what the various senators, representatives and state legislators who voted on it might have said about the conflict. The courts also would generally give a more specific provision priority over one that is broader (thus a ban on burning the flag would trump the more general freedom of speech). They might also give the latter amendment priority over the earlier one. There are other such criteria that the courts would consider.

It's also possible that the courts would give one amendment priority under some circumstances, while giving the other priority the rest of the time. Or they might find a way to interpret the amendments so that they don't conflict after all.

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Answered on 4/17/11, 4:26 pm


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