Redundant Amendments: What the Constitution Says When it Repeats Itself

39 Pages Posted: 1 Jun 2017

See all articles by Robert Black

Robert Black

New York University Department of Politics

Date Written: May 30, 2017

Abstract

We think of constitutional amendments as the mechanism through which the Constitution changes, but some amendments have been at least partially redundant. Their provisions, in other words, would arguably have been implicit in the Constitution before they were enacted. Supporters of the Eleventh Amendment, for instance, surely thought the original Constitution was properly read as including a sovereign immunity principle. Such an amendment poses a unique interpretive challenge: should we follow this understanding of the preexisting Constitution as already having mandated, e.g., sovereign immunity, or not? This Article explores this puzzle both theoretically, by exploring the different legal arguments on each side of the dilemma, and empirically, through case studies of several fully or partially redundant amendments that have been ratified or at least proposed by Congress. This history, then, can provide guidance to anyone thinking of suggesting a new redundant amendment to ensure that its effects align with their intentions.

Keywords: constitutional law, constitutional interpretation, constitutional amendments

Suggested Citation

Black, Robert, Redundant Amendments: What the Constitution Says When it Repeats Itself (May 30, 2017). University of Detroit Mercy Law Review, Vol. 94, No. 2, 2017, Available at SSRN: https://ssrn.com/abstract=2977695

Robert Black (Contact Author)

New York University Department of Politics ( email )

New York, NY
United States

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