Constitutional Change and the Supreme Court: The Article V Problem

Abstract

The topic of constitutional change, both inside and outside the courts, has long vexed constitutional commentators. One difficult question is under what circumstances judicial review amounts to an informal amending of the United States Constitution. When the constitutional text is vague, and the history of that text contested, judicial review, absent a model of strong deference, will inevitably lead to constitutional change and informal amendments that do not go through Article V procedures. Where the constitutional text is clear, however, judges should defer to that text and avoid informally amending the Constitution. My paper will focus on constitutional change and the Tenth and Eleventh Amendments. My thesis is that the Court has informally and improperly amended the Constitution through its interpretation of those Amendments in direct contravention of Article V.

Keywords: Constitution, constitutional law, Supreme Court, judicial review, Article V, Tenth Amendment, Eleventh Amendment, constitutional amendment, constitutional change, constitutional interpretation

JEL Classification: K00, K19, K30, K39