Can a Constitutional Amendment Overrule a Supreme Court Decision?

By Paulsen, Michael Stokes | Constitutional Commentary, Summer 2007 | Go to article overview

Can a Constitutional Amendment Overrule a Supreme Court Decision?


Paulsen, Michael Stokes, Constitutional Commentary


Of course it can, you idiot!, you might well say to me, answering my title question. Why would anyone waste even the minimal time needed to write a short, light article addressing a question with such a ridiculously self-evident answer?

Could I slow you down for just a moment, please? Sometimes thinking about why a proposition is so self-evidently true can help answer other questions that folks find not quite so obvious. Moreover, I have learned from experience that some law students, at least at first, are not so clear about the answer to my question. Several times, I have had a student ask some version of this question in the first week of my first-year, first-semester Constitutional Law course.

It is not really that surprising a question. For students whose primary exposure to constitutional law has come from high school or junior high classes in history, government, or civics, or from the media, the well-accepted shorthand is that the Supreme Court decides what the Constitution says. The relationship between what the Supreme Court has held, and a constitutional amendment, might not be immediately obvious to those with only this rudimentary, reductionist understanding of how constitutional law works. So, rather than being condescending (never a good teaching tactic), I have found that such confusion can supply a valuable "teaching moment"--as it turns out, for me as well as for my students. I have learned, for example, that the answer to this question can teach a good bit about constitutional law, even to those who think themselves sophisticates in the field.

I.

I therefore begin with what I agree should be an extraordinarily simple principle: A constitutional amendment trumps a prior Supreme Court decision.

Allow me one simple, paradigmatic example. The Thirteenth Amendment and the Fourteenth Amendment "overrule," respectively, each of Dred Scott's two main atrocious holdings: first, that the Fifth Amendment protection against deprivation of liberty or property without "due process of law" includes a substantive constitutional right to own slaves, as against federal government interference; and second, that black men and women, including free blacks, cannot be "citizens" of the United States or of any state within the meaning of Article III and Article IV's clauses that concern certain legal consequences incident to state citizenship. The Thirteenth Amendment prohibits slavery. Period. The amendment thus directly overrules Dred Scott's insidious creation of a substantive due process constitutional right to own slaves in federal territory. The Fourteenth Amendment's first sentence provides that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside, overruling Dred Scott's equally insidious citizenship holding.

At some point in the first few weeks of class, I usually use the above example of amendments superseding a Supreme Court decisions. A student sometimes asks, innocently enough (if it is early enough in the first semester of law school--it becomes a bit harder to swallow when one reads such things in the end-of-the-year exams), why an amendment beats a prior Supreme Court decision. After all, students frequently come to law school understanding, from years of having been taught by junior high, high school, and college instructors, that what the Supreme Court says, goes, .for constitutional law. The Constitution means what the Supreme Court interprets it to mean. That's what Marbury v. Madison established. (Right?)

I consider it the moral imperative of the first six days of a good Constitutional Law class--or, perhaps, the first six weeks or six months--to lead students to the realization of the seriousness of this error in their thinking and so to undo the harm of what Mrs. Krueger or Mr. McCormack or Mr. Ostertag (probably their real names) taught them in fourth grade and again in eighth, and in tenth, and what Professor Polisci confirmed in American Government class at the University of Mischiefsota because that is what he was taught in junior high, too. …

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