The Apportionment clause was invalidly repealed by statute 85 years ago

  (seeFrozen Apportionment).


The Preamble was invalidly repealed by ruling 109 years ago

  (see Restoring the Preamble).


They’re not marked as repealed in textbooks but because courts follow caselaw they're no longer enforced, although courts do use the Preamble in the ‘expert witness’ capacity Jacobson creates

to clarify points in "the body of the Constitution".

If something can't be enforced in court it's effectively gone.


The words are still present but they can't be

used in court anymore.


Section 5 restores and safeguards the valid amendment process with a process clause.

The following pages explain how and why.


When Constitutional text has been invalidly amended, we don't need Article V to restore it because

the text is already in the Constitution. But because the Supreme Court guides the legal system and the government on Constitutionality its errors can amend invalidly, as can statutes and executive acts. Because the legal system and the government follow the Court, an invalidly amending statute

it incorrectly upholds or the rare ruling that invalidly amends in itself (like Jacobson)

stands until restored.


Invalid amendment can be restored by three methods:


  • a Supreme Court ruling that a statute, executive act or ruling (including its own) removed Constitutional text from the law,
  • a Congressional statute repealing or reinstating a statute for the same reason,
  • and of course Article V, difficult but an option always available to the public. 


Only one is in regular use. The Supreme Court's power to restore text after invalid amendment is well settled. But Congress generally only exerts this power over its own previous statutes and over Executive Acts (not exclusively, though; for example, the second version of the Religious Freedom Restoration Act overrode the Court).  


When does the Constitution allow Congress to defy a Supreme Court decision? 

The Court sometimes overturns its own decisions.

It’s not necessary or wise to keep that power solely self-administered when the Constitution itself is at stake. 

Article VI:


"This Constitution,

and the Laws of the United States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; […].

The Senators and Representatives before mentioned, and the Members of the several State Legislatures,

and all executive and judicial Officers […] shall be bound by Oath or Affirmation,

to support this Constitution;"


If a decision removes or reduces the legality of any word of the Constitution,

it is unconstitutional and Congress may reinstate a law if the decision voided the law by invalidly amending the Constitution. The obligation to support the Constitution is higher than the obligation to follow the Court. This is not new with this amendment.


There's a caveat: When caselaw drift compounds an invalidating error it becomes harder to reestablish the text securely. Restoration by ruling or statute can result in conflicting precedents instead,

bringing politics into the Court's decisions where politics emphatically does not belong.

When conflicting precedents multiply over time until not even the Supreme Court can make a solid, apolitical decision amendment has to be considered (see Statute vs Constitutional Amendment). 



What can we to make this easier to address?

See Invalid Amendment and Caselaw Drift.

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Restoring Invalidly Amended Text

Safeguard the public's Constitutional rights.