13 Pages Posted: 30 May 2017
Date Written: May 28, 2017
High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism — for instance an amendment to restrict political speech or to establish a national religion in the United States — the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy in the United States. In this Article prepared for the annual “Constitutional Law Schmooze” at the University of Maryland, I sketch eight strategies the Court could deploy in order to defend of American constitutional democracy — and to make itself truly supreme by immunizing its judgments from reversal by constitutional amendment.
Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, Corwin Amendment, Constitutional Democracy, Juristocracy, Basic Structure Doctrine, Belize, Czech Republic, United States, Togo, Nicaragua, South Africa
Suggested Citation: Suggested Citation
Albert, Richard, How a Court Becomes Supreme (May 28, 2017). 77 Maryland Law Review (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2975832