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Congressional Power to Change Constitutional Law: Three Lacunae

University of Cincinnati Law Review, Vol. 77, p. 1053, 2009

74 Pages Posted: 24 Jun 2009  

Richard A. Paschal

George Mason University, School of Law - Adjunct Faculty

Date Written: June 23, 2009

Abstract

One of the most basic principles of American constitutionalism is that Congress cannot statutorily overturn the Supreme Court's constitutional decisions. Although it can reverse statutory decisions, Congress is not able to supersede the Court's constitutional rules because it cannot change the source of law being interpreted - the Constitution - outside of the amendment process of Article V. Given the problems with judicial supremacy for many constitutional theorists, there has been a noticeable gap in the literature on the ways in which Congress can, in fact, successfully challenge the Court's reading of the Constitution. Few scholars provide any account of how other governmental institutions or even the constitutional culture at large can directly confront and overturn a given constitutional rule.

This Article seeks to address this gap in the scholarship by highlighting three areas - three lacunae - where Congress has the ability to displace constitutional rules by statute. Congress has the power to overturn constitutional decisions in three specific areas within the federalism realm: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause. This Article will demonstrate that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions tells us something important about our Constitution and our federalism. The existence of these three anomalies suggests that adaptability and accommodation often take constitutional precedence over theoretical purity, especially when issues of federalism are involved.

Keywords: popular constitutionalism, departmentalism, finality, dialogue, Marbury

Suggested Citation

Paschal, Richard A., Congressional Power to Change Constitutional Law: Three Lacunae (June 23, 2009). University of Cincinnati Law Review, Vol. 77, p. 1053, 2009. Available at SSRN: https://ssrn.com/abstract=1424646

Richard A. Paschal (Contact Author)

George Mason University, School of Law - Adjunct Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-469-2229 (Phone)

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