Article: Article V Versus Article 89: Why The U.S. Does Not Overturn Supreme Court Rulings Through Amendment

On the evening of January 27, 2010, the Capitol witnessed an epic bout.  From his bully pulpit and encircled by the thundering applause of his political majority, President Barack Obama publicly criticized the Supreme Court’s recent decision in Citizen’s United v. Federal Election Commission.[1]  The fact that a political branch of government openly expressed its disapproval of the Court’s decision is not extraordinary.[2]  However, making such direct comments during the nationally televised State of the Union address, while the Justices of the Court were seated front and center, directly facing their critic and surrounded by his supporters, was unprecedented.[3]  The world watched as the black-robed Justices sat awkwardly, the President berating their actions and Congress jeering in agreement.  While those Justices who were “more disciplined refrain[ed] from manifesting any emotion or opinion whatsoever”[4] during this dressing-down, Justice Alito appeared constrained to raise a hand in self-defense, essaying to fend off these verbal jabs by mouthing the words “not true.”[5]

Nevertheless, while this public rebuke may have been highly uncomfortable for the six justices present during the speech, the very words of the President’s address reveal who the ultimate winner of this fight would be.  Throughout all of the fist pumping and chest pounding, the President declared that the Citizen’s United decision had “reversed a century of law” that would “open the floodgates” to very negative consequences.[6]  He also clearly stated his own opposition to the decision and his desire to promote and preserve American democratic ideals.[7]  Even so, in the end, the best that the President could do was to ask Congress to pass a bill that might restore the status quo in light of the Supreme Court’s decision.[8]  Instead of aiming for a knockout punch, the President implicitly recognized his own incapacity to captain a definitive reversal of Supreme Court precedent through the Article V process.  This round went to the Court.

In contrast, and four years earlier, Jacques Chirac, then-president of the French Republic, also confronted his own constitutional court regarding a recent decision.  That October, the Conseil constitutionnel had ruled that France could not adhere to an international treaty banning the death penalty, judging that France could not relinquish its ability to make sovereign acts in the face of exceptional danger, by ratifying an irrevocable treaty.[9]  However, instead of making his challenge during a political speech, on live television, and surrounded by hundreds of his allies, President Chirac chose to drop his gauntlet within the Élysée Palace, when the Conseil paid a visit to the President to present to him their best wishes for the New Year.[10]  Moreover, instead of making broad and condemning statements about the decision, Chirac very matter-of-factly recognized the Conseil’s authority and the consequential necessity of a constitutional revision to proceed with that ratification,[11] and then informed the members of the Conseil that he had already begun the amendment process.[12]  Eighteen months later, France had constitutionally banned the death penalty within its territory.[13]

The difference here is stark because, unlike in France, amending the U.S. Constitution to overturn the Supreme Court’s decisions is politically unfeasible—when the Supreme Court of the United States has declared the law, the most that the political branches often do is hoot, holler, and stomp their feet.  The flag-burning controversy in the early 1990s is quite illustrative.[14]  During the flag-burning cases, the Supreme Court drew a line in the sand, and declared that the First Amendment protected the speech of flag-burning protesters.[15]  After Congress tried to riposte by passing the Flag Protection Act of 1989,[16] the Court promptly landed a finishing strike, putting Congress back in its place and showing that it would not budge on its decision.[17]  The only route available that would have provided a truly “durable means of curtailing the Court’s power or overturning specific decisions” was the amendment process.[18]  Nevertheless, not a single flag-burning amendment proposal has ever made it out of Congress.[19]

Such a conundrum posits the question: why are American expectations so different from those of the French when it comes to amending the Constitution to reverse Supreme Court decisions?  Pointing to the fact that the United States has only constitutionally reversed four Supreme Court decisions in its long history,[20] while the French have reversed eleven since the ratification of their 1958 Constitution,[21] scholars usually claim that the Article V process is just too rigorous, while the French Constitution probably does not require that same level of exactitude.[22]  This view falls short in both assessments.  First, it fails to give proper credit to the American Framers who intended Article V to be a tool which allows Americans to correct constitutional imperfections and not a process which is so difficult to use that it perpetuates those defects.[23]  Second, it underestimates a stable French system that maintains high standards for any revisions to its fundamental charter.  Consequently, the reason for American reticence must therefore lie elsewhere.

Employing the text, history, and treatment of France’s own constitutional amendment provision as a lens, this Article takes a new look at America’s application of Article V and concludes that the difficulty of the process cannot be the principal reason for America’s failure to challenge the Supreme Court through amendments.  In fact, using a different objective brings into focus certain institutional and cultural characteristics, including the make-up and function of the United States Supreme Court, as well as American attitudes regarding the Court and the Constitution, showing that they are the primary reasons for the United States’ reluctance to turn to Article V to reverse the Court’s decisions.[24]

Part I provides a doctrinal background for the role of Article V in the American constitutional system, explaining that the Framers intended for it to be used as a tool to correct constitutional deficiencies as they were discovered, including when those discoveries are made by the Supreme Court.  Part II justifies the basis of this Article’s comparison between the American Article V and the French Article 89 by showing that their almost equivalent procedural rigor necessitates a look beyond the procedure into cultural and institutional impediments.  Part III then works to identify those impediments by analyzing differences between the French and American systems.

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Landon Wade Magnusson: L.L.M. 2011, École de droit de la Sorbonne, Université Panthéon-Sorbonne (Paris 1); J.D.  2010, J. Reuben Clark Law School, Brigham Young University; B.A. 2007, Brigham Young University.  Email: lwm6@byulaw.net.



[1].130 S. Ct. 876 (2010).

[2].David S. Broder, Arming for an Ad War, Wash. Post, Jan. 31, 2010, at A21.

[3].David G. Savage, Obama, Alito Incident Has a History Behind It, Pitt. Post-Gazette, Jan. 31, 2010, at A8.

[4].Ass. Press, Supreme Court Justice Alito Plans to Skip next State of Union Address, FoxNews.com (Oct. 16, 2010), http://www.foxnews.com/politics/2010/10/16/supreme-court-justice-alito-plans-skip-state-union-address.

[5].Justice Openly Disagrees with Obama in Speech, Msnbc.com (Jan. 28, 2010 1:19 pm ET), http://www.msnbc.msn.com/id/35117174/ns/politics-white_house.

[6].Barack H. Obama, U.S. President, Address Before a Joint Session of the Congress on the State of the Union (Jan. 27, 2010), in Daily Compilation of Presidential Documents at 8, http://www.gpoaccess.gov/presdocs/2010/DCPD-201000055.pdf.

[7].Id.

[8].Id. (“I’d urge Democrats and Republicans to pass a bill that helps [to] correct some of these problems.”).

[9].Conseil constitutionnel [CC] [Constitutional Court] decision No. 2005-524/525DC, Oct. 13, 2005, J.O. 16,609 (Fr.) (“[C]et engagement lierait irrévocablement la France même dans le cas où un danger exceptionnel menacerait l’existence de la Nation.”).  The treaty in question was the Second Optional Protocol to the International Covenant on Civil and Political Rights.

[10].Allocution de M. Jacques Chirac, Président de la République, à l’occasion de la présentation des vœux au Conseil constitutionnel, Cahiers du Conseil Constitutionnel (June 20, 2006), http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/nouveaux-cahiers-du-conseil/cahier-n-20/allocution-de-m-jacques-chirac-president-de-la-republique-a-l-occasion-de-la-presentation-des-voeux-au-conseil-constitutionnel.51763.html.

[11].Id. (“Vous avez estimé que sa ratification exigerait une révision de la Constitution.”).

[12].Id. (“J’ai décidé d’engager ce processus.  Une telle révision, en inscrivant solennellement dans notre Constitution que la peine de mort est abolie en toutes circonstances, consacrera l’engagement de la France.  Elle témoignera avec force de notre attachement aux valeurs de la dignité humaine.”).

[13].Loi 2007-239 du 23 février 2007 relative a l’interdiction de la peine de mort [Law 2007-239 of February 23, 2007, interim report on the prohibition of capital punishment], Journal Officiel de la RÉpublique Française [J.O.] [Official Gazette of France], Feb. 24, 2007, p. 3355.

[14].See generally Daniel H. Pollitt, The Flag Burning Controversy: A Chronology, 70 N.C. L. Rev. 553 (1992); Charles Tiefer, The Flag-Burning Controversy of 1989-1990:  Congress’ Valid Role in Constitutional Dialogue, 29 Harv. J. on Legis. 357 (1992).

[15].Texas v. Johnson, 491 U.S. 397, 414 (1989).

[16].Flag Protection Act of 1989, Pub. L. No. 87-195, 103 Stat. 777 (codified in 18 U.S.C. § 700 (2006)).

[17].United States v. Eichman, 496 U.S. 310, 318 (1990).

[18].William Ross, The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks, 38 Wake Forest L. Rev. 733, 747 (2003).

[19].The latest attempt at passing a flag-burning amendment failed in the United States Senate in June 2006.  See Carl Hulse, Flag Amendment Narrowly Fails in Senate Vote, N.Y. Times, June 28, 2006, at A1.

[20].Thomas E. Baker, Towards a “More Perfect Union”: Some Thoughts on Amending the Constitution, 10 Widener J. Pub. L. 1, 8-9 (2000).  (The four relevant decisions are: Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was annulled by the Eleventh Amendment; Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which was the target of the Thirteenth, Fourteenth, and Fifteenth Amendments; Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), which was annulled by the Sixteenth Amendment; and Oregon v. Mitchell, 400 U.S. 112 (1970), which was invalided by the Twenty-Sixth Amendment.)  Id.

[21].See infra Part II.B.

[22].See, e.g., Sanford Levinson, Our Undemocratic Constitution 160-64 (2006).

[23].The Federalist No. 43, at 278 (James Madison) (Clinton Rossiter ed., 1961) (stating that the Article V amending procedures are designed to “guard [] equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”).

[24].It would be dishonest to claim that the U.S. does not use Article V to overrule judicial opinions for any reasons other than those here described.  Certainly, special interest groups may also play a significant role.  Nevertheless, while those groups have been effective in influencing legislation, they have not had the same effect on amendments.  This leads one to conclude that, while they may be influential, special interest groups cannot be counted among the primary reasons for America’s reluctance to turn to Article V in the face of unpopular Supreme Court decisions.

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