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How a Court Becomes Supreme

13 Pages Posted: 30 May 2017  

Richard Albert

Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: May 28, 2017

Abstract

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

Albert, Richard, How a Court Becomes Supreme (May 28, 2017). 77 Maryland Law Review (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2975832

Richard Albert (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Boston, MA 02459-1163
United States
617.552.3930 (Phone)

HOME PAGE: http://www.richardalbert.com

Yale University - Law School ( email )

127 Wall Street
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.law.yale.edu

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://190.7.110.123/irj/portal/anonymous/fac_derecho

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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