Can a Constitutional Amendment Overrule a Supreme Court Decision?
Michael Stokes Paulsen
University of St. Thomas School of Law
Constitutional Commentary, Forthcoming
U of St. Thomas Legal Studies Research Paper No. 08-05
This very short article takes as its point of departure a charmingly, innocent first-year law student, first-week-of-class question, and examines its rather startling implications. If (as everyone knows) a constitutional amendment "trumps" a prior Supreme Court decision (as the Thirteenth and Fourteenth Amendments trumped Dred Scott), it is because the text of the Constitution (where sufficiently clear) always prevails over a contrary holding of the Supreme Court. The follow-up student question, "Can the Supreme Court strike down a constitutional amendment and just reaffirm its earlier decision?" is also charmingly innocent, and suggests important insights as well. If (as everyone knows) the Supreme Court must treat the text of the amendment as prevailing over its contrary prior opinion, why does not the same principle apply to every text of the Constitution?
In the answers to these seemingly "dumb" questions may lie the keys to understanding everything that it wrong with "constitutional interpretation" today!
Number of Pages in PDF File: 6
Keywords: Constituitional law, constitution, constitutional amendment, constitutional interpretation, supreme court, judicial review, legal educationAccepted Paper Series
Date posted: March 10, 2008
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