Article V Versus Article 89: Why the U.S. Does not Overturn Supreme Court Rulings through Amendment

Abstract

The Supreme Court’s power of judicial review grants it tremendous sway in the governing process, allowing it to shape and influence the law even when its decisions are contrary to the majority of the public’s opinion. Nevertheless, this power is neither unlimited nor unchecked. Because the Court’s boundaries are defined by an amendable Constitution, the American people and their elected representatives can essentially veto Supreme Court decisions through the Article V amendment process. However, even after the many hundreds of controversial and unpopular decisions that the Supreme Court has rendered since the Founding, only four rulings have ever been the impetus behind an amendment veto. Typically, scholars point to the difficulty of the Article V process to explain why Americans practically never use it to overturn rulings of the Supreme Court. This article questions that general theory. Examining France’s version of Article V, the rigor present in that procedure, and the fact that the French have still managed to use their amendment process to overturn their constitutional court’s decisions eleven times in the last forty years, this article concludes that the difficulty of the process cannot be the sole reason for America’s failure to challenge the Supreme Court through amendments. Comparing the French and American systems, this article finds that American institutional and cultural characteristics, including the make-up and function of its Supreme Court, as well as American attitudes regarding the Court and the Constitution, are the primary reasons for the United States’ reluctance to turn to the Article V process to reverse the Court’s decisions.

Keywords: Article V, Constitution