Constitutional Commentary, Forthcoming
6 Pages Posted: 10 Mar 2008
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!
Keywords: Constituitional law, constitution, constitutional amendment, constitutional interpretation, supreme court, judicial review, legal education
Suggested Citation: 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: https://ssrn.com/abstract=1104529