2008SSRN Electronic JournalOpen access

Can a Constitutional Amendment Overrule a Supreme Court Decision

Michael Stokes Paulsen

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Abstract

This very short article takes as its point of departure a charmingly, innocent first-year law student, first-week-of-class question, and examines its rather startling implications. If (as everyone knows) a amendment trumps a prior Supreme Court decision (as the Thirteenth and Fourteenth Amendments trumped Dred Scott), it is because the text of the Constitution (where sufficiently clear) always prevails over a contrary holding of the Supreme Court. The follow-up student question, Can the Supreme Court strike down a amendment and just reaffirm its earlier decision? is also charmingly innocent, and suggests important insights as well. If (as everyone knows) the Supreme Court must treat the text of the amendment as prevailing over its contrary prior opinion, why does not the same principle apply to every text of the Constitution? In the answers to these seemingly dumb questions may lie the keys to understanding everything that it wrong with constitutional interpretation today!

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What this paper is about

This very short article takes as its point of departure a charmingly, innocent first-year law student, first-week-of-class question, and examines its rather startling implications. If (as everyone knows) a amendment trumps a prior Supreme Court decision (as the Thirteenth and Fourteenth Amendments trumped Dred Scott), it is because the text of the Constitution (where sufficiently clear) always prevails over a contrary holding of the Supreme Court. The follow-up student question, Can the Supreme Court strike down a amendment and just reaffirm its earlier decision? is also charmingly innocent, and suggests important insights as well. If (as everyone knows) the Supreme Court must treat the text of the amendment as prevailing over its contrary prior opinion, why does not the same principle apply to every text of the Constitution? In the answers to these seemingly dumb questions may lie the keys to understanding everything that it wrong with constitutional interpretation today!

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Available abstract

This very short article takes as its point of departure a charmingly, innocent first-year law student, first-week-of-class question, and examines its rather startling implications. If (as everyone knows) a amendment trumps a prior Supreme Court decision (as the Thirteenth and Fourteenth Amendments trumped Dred Scott), it is because the text of the Constitution (where sufficiently clear) always prevails over a contrary holding of the Supreme Court. The follow-up student question, Can the Supreme Court strike down a amendment and just reaffirm its earlier decision? is also charmingly innocent, and suggests important insights as well. If (as everyone knows) the Supreme Court must treat the text of the amendment as prevailing over its contrary prior opinion, why does not the same principle apply to every text of the Constitution? In the answers to these seemingly dumb questions may lie the keys to understanding everything that it wrong with constitutional interpretation today!

Key concepts: Supreme court, Law, Constitution, Political science, Majority opinion, Concurring opinion, Supreme Court Decisions, Interpretation (philosophy)

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