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http://ssrn.com/abstract=1104529
 
 

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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

Abstract:     
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 education

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Date posted: March 10, 2008  

Suggested Citation

Paulsen, Michael Stokes, Can a Constitutional Amendment Overrule a Supreme Court Decision?. Constitutional Commentary, Forthcoming; U of St. Thomas Legal Studies Research Paper No. 08-05. Available at SSRN: http://ssrn.com/abstract=1104529

Contact Information

Michael Stokes Paulsen (Contact Author)
University of St. Thomas School of Law ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4831 (Phone)
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