Amending the exceptions clause

Minnesota Law Review

Volumn 92, Issue 4, 2008, Pages 971-1030

  Blocher, Joseph ^a  

^a NONE

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EID: 44949245837     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (350)

1. Juliet Eilperin, New Drive Afoot to Pass Equal Rights Amendment, WASH. POST, Mar. 28, 2007, at A1.
2. The original Equal Rights Amendment was approved by thirty-five states - just short of the thirty-eight it needed for ratification. Jim Abrams, Uphill Fight Forecast for Equal Rights Amendment, BOSTON GLOBE, Apr. 4, 2007, at A4. The text of the Amendment reads as follows: SECTION I. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. SEC. 3. This amendment shall take effect two years after the date of ratification. H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972).
3. Abrams, supra note 2.
4. U.S. CONST. art. V (establishing process for constitutional amendment).
5. See Abrams, supra note 2.
6. Alexander K. Hooper, Recent Developments, Jurisdiction Stripping: The Pledge Protection Act of 2004, 42 HARV. J. ON LEGIS. 511, 513 (2005) ("This surge of court-stripping legislation is the strongest since the early 1980s, when court decisions upholding school busing programs provoked an equally strong congressional reaction."). Of course, this is not the first decade in which scholars have felt besieged by amendment proposals.
7. See, e.g., Kathleen M. Sullivan, Constitutional Amendmentitis, AM. PROSPECT, Fall 1995, at 20.
8. Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e), 119 Stat. 2739, 2741-43; see also 151 CONG. REC. S12,752-53 (daily ed. Nov. 15, 2005) (statement of Sen. Graham) (presenting the text of the Graham-Levin Amendment).
9. Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (to be codified in scattered sections of 10, 18, 28, and 42 U.S.C.). Section 7(a) of the MCA purports to strip federal courts of all jurisdiction over habeas claims brought by aliens detained by the United States government whom the government has determined to be enemy combatants or who are awaiting determination of such status. Id. § 7(a), 120 Stat. at 2635-36 (to be codified at 28 U.S.C. § 2241(e)).
10. In Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2769 (2006) (denying the government's motion to dismiss), the Supreme Court considered and rejected an argument that the Graham-Levin Amendment stripped it of jurisdiction over Hamdan's then-pending case. Because the Court found that the Graham-Levin Amendment did not apply to pending cases, it did not address the Amendment's constitutionality. Id. at 2763-64, 2769 n.15. In February 2007, a divided panel of the United States Court of Appeals for the District of Columbia held that the MCA denied all federal jurisdiction over pending habeas cases filed by aliens held at Guantánamo. Boumediene v. Bush, 476 F.3d 981, 994 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478 (2007), cert. granted, 127 S. Ct. 3078 (2007). The Supreme Court refused to hear an expedited appeal from the D.C. Circuit's decision, Boumediene v. Bush, 127 S. Ct. 1478 (2007), but Justices Breyer, Souter, and Ginsburg published a dissent from denial of certiorari, id. at 1479 (Souter, Ginsberg & Breyer, JJ., dissenting), and Justices Stevens and Kennedy published a joint statement pointedly indicating their willingness to review future claims "[w]ere the Government to take additional steps to prejudice the position of petitioners seeking review in this Court," id. at 1478 (statement of Stevens & Kennedy, JJ.). In June 2007, the Court reversed course and mustered the necessary five votes in favor of oral argument. Boumediene v. Bush, 127 S. Ct. 3078 (2007) (granting certiorari). The case was heard on December 5, 2007. Supreme Court Revisits Habeas Rights of Guantánamo Enemy Combatant Detainees, 76 U.S.L.W. 3297 (2007).
11. See Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129 (1981) (discussing eighteen proposals to reduce the jurisdiction of federal courts).
12. See, e.g., H.R. 9622, 95th Cong. (1978) (abolishing diversity jurisdiction except for alienage and statutory interpleader); S. 2389, 95th Cong. (1978); S. REP. NO. 691, 71st Cong, 2d Sess. (1930). To modern lawyers, the elimination of federal diversity jurisdiction may seem radical, but many eminent scholars and judges have supported the idea over the years. E.g., Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48, 54 (1954) (Frankfurter, J., concurring) (referring to the "mounting mischief inflicted on the federal judicial system by the unjustifiable continuance of diversity jurisdiction"); Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 650-51 (1949) (Frankfurter, J., dissenting).
13. See generally Chip Jones, Comment, Freeman v. Pitts; Congress Can (and Should?) Limit Federal Court Jurisdiction in School Desegregation Cases, 47 SMU L. REV. 1889 (1994);
14. Constance W. Watson, Comment, The Helms-Johnston Amendment: A Congressional Effort to Curb the Jurisdiction of Federal Courts and to Restrict Busing as a Remedy in School Desegregation Cases, 26 HOW. L.J. 1661 (1983).
15. S. 210, 98th Cong. (1983) (stripping lower federal court jurisdiction over abortion cases). The Ninety-seventh Congress proposed similar bills. See H.R. 3225, 97th Cong. § 4 (1981); S. 158, 97th Cong. § 2 (1981).
16. See infra Part II.C.
17. See infra Part II.B for a partial review of the rich literature. For more current discussion, see Conference, Fair and Independent Courts: A Conference on the State of the Judiciary, 95 GEO. L.J. 895 (2007).
18. U.S. CONST. art. III, § 2, cl. 2 (describing the Supreme Court's appellate jurisdiction "both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make").
19. This does not mean, of course, that such claims cannot be heard, only that federal courts cannot hear them. State court judges also swear to uphold federal law and have concurrent jurisdiction to consider federal law claims. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 341-44, 346 (1816).
20. See Laurence H. Tribe, Comment, A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 HARV. L. REV. 433, 436 (1983) (referring to amendment as "constitutional politics as opposed to constitutional law"). I do not mean here to invoke the same kind of "higher lawmaking" Bruce Ackerman describes as involving "Publian appeals to the common good, ratified by a mobilized mass of American citizens expressing their assent through extraordinary institutional forms."
21. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1022 (1984) [hereinafter Ackerman, Discovering the Constitution] (footnotes omitted);
22. see also BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 266-94 (1991) [hereinafter ACKERMAN, WE THE PEOPLE] (discussing "higher lawmaking");
23. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453 (1989) [hereinafter Ackerman, Constitutional Politics].
24. Writing in 1984, Ackerman noted that, "[t]hough no permanent damage has yet been done, the law of constitutional amendment has increasingly been dominated by short-term considerations of factional advantage rather than a long-run sense of constitutional development." Ackerman, Discovering the Constitution, supra note 18, at 1065. The same might easily be said of jurisdiction-stripping proposals. See Laura N. Fellow, Note, Congressional Striptease: How the Failures of the 108th Congress's Jurisdiction-Stripping Bills Were Used for Political Success, 14 WM. & MARY BILL RTS. J. 1121 passim (2006) (explaining the political benefits to legislators of supporting such proposals). To borrow and alter slightly Ackerman's conception of a dualist democracy - which separates "constitutional" from "normal" politics, Ackerman, Constitutional Politics, supra note 18, at 461-62 - this trend suggests that the distinction between the two tiers of politics is collapsing, or at least that means of politics traditionally associated with the former are now becoming common currency for the latter. I say "alter" because Ackerman is not particularly concerned with these characterization-of-process questions. Constitutional politics, in his conception, can and usually do occur without regard to Article V. See id. at 509-15 (noting examples of higher lawmaking in ways that supplement the process of Article V).
25. One scholar who has devoted sustained attention to both areas is Akhil Amar, whose work has addressed both constitutional amendment, see, e.g., Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988) [hereinafter Amar, Philadelphia Revisited],
26. and federal jurisdiction, see, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985);
27. Akhil Reed Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990); Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990).
28. Following the Supreme Court's rulings in Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990), the Senate came within three votes of approving an amendment that would have criminalized desecration of an American flag. Robin Toner, Flag-Burning Amendment Fails in Senate, but Margin Narrows, N.Y. TIMES, Dec. 13, 1995, at A1. Similar amendments have been proposed since, and last year came within a single vote of Senate approval.
29. Carl Hulse, Flag Amendment Narrowly Fails in Senate Vote, N.Y. TIMES, June 28, 2006, at A1. Those who believe that an amendment would be "overkill" have suggested that jurisdiction-stripping measures might suffice instead.
30. Ramesh Ponnuru, One Branch Among Three, NAT'L REV., July 29, 2002, at 32.
31. In the aftermath of the Massachusetts Supreme Court's ruling in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), multiple amendments defining marriage as existing only between a man and a woman were proposed in both houses of Congress. See, e.g., H.R.J. Res. 106, 108th Cong. (2004); S.J. Res. 40, 108th Cong. (2004); S.J. Res. 30, 108th Cong. (2004). These amendments failed in both the House and Senate, but were quickly followed with the Marriage Protection Act, H.R. 3313, 108th Cong. (2004), which would have severely curtailed federal jurisdiction. For a helpful chronology of events, see Fellow, supra note 19, at 1154-56.
32. Amendments protecting school prayer have been proposed many times, though few have gained much currency. See, e.g., H.R.J. Res. 11, 110th Cong. (2007). Jurisdiction-stripping proposals have been proposed just as frequently. See infra notes 170-78 and accompanying text.
33. More than 10,000 amendment proposals have been brought before Congress. Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111, 112 (1993). Jurisdiction-stripping legislation has fared little better. Fellow, supra note 19, at 1123 (noting the "eternal failure" of such bills).
34. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (internal quotation marks omitted).
35. U.S. CONST. amend. XIV, § 1; see, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 319-20 (1978) (striking down a race-based medical school admissions program); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) ("Separate educational facilities are inherently unequal.").
36. Only once has the U.S. Constitution been explicitly amended to remove another amendment. See U.S. CONST. amend. XXI, § 1 ("The eighteenth article of amendment to the Constitution of the United States is hereby repealed."); see also id. amend. XVIII (prohibiting the "manufacture, sale, or transportation of intoxicating liquors" within the United States and its jurisdiction); Richard F. Hamm, Short Euphorias Followed by Long Hangovers: Unintended Consequences of the Eighteenth and Twenty-first Amendments, in UNINTENDED CONSEQUENCES OF CONSTITUTIONAL AMENDMENT 164, 182 (David E. Kyvig ed., 2000).
37. See Christopher T. Handman, Note, The Doctrine of Political Accountability and Supreme Court Jurisdiction: Applying a New External Constraint to Congress's Exceptions Clause Power, 106 YALE L.J. 197, 199 (1996) (noting that jurisdiction stripping may be a second-best alternative for legislators who are unable to muster support for a revising amendment). A 2004 Republican Policy Committee paper endorsed jurisdiction stripping as a better "check" on the judiciary than impeachment or amendment: The best check available to the people is for their representatives to eliminate the jurisdiction of the federal courts over particular issues. The alternatives are too cumbersome for all but the most fundamental matters. For example, it is very difficult to remove judges from office, and the constitutional amendment process is inadequate to address all ill-advised judicial pronouncements. U.S. Senate Republican Policy Comm., The Case for Jurisdiction-Stripping Legislation: Restoring Popular Control of the Constitution 4 (Sept. 28, 2004), available at http://rpc.senate.gov/
38. Many jurisdiction-stripping proposals are premised on the belief that state courts will find a way around Supreme Court precedent, or else will simply ignore it, knowing that their decisions cannot be overturned by the Court. See, e.g., Eugene Gressman & Eric K. Gressman, Necessary and Proper Roots of Exceptions to Federal Jurisdiction, 51 GEO. WASH. L. REV. 495, 505 (1983);
39. Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 VILL. L. REV. 900, 926 (1982);
40. Charles E. Rice, Limiting Federal Court Jurisdiction: The Constitutional Basis for the Proposals in Congress Today, 65 JUDICATURE 190, 197 (1981);
41. Lawrence Gene Sager, Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 68 (1981).
42. Indeed, it seems almost inevitable that some state courts would ignore federal mandates in hotly contested areas of law, such as those typically targeted by current amendment and jurisdiction-stripping proposals. Public prayer - the target of both constitutional amendments and a jurisdiction- stripping proposal considered in Part II.C - is only the most prominent example. See also Todd Kleffman, Moore Won't Move Display, MONTGOMERY ADVERTISER (Ala.), Aug. 15, 2003, at A1, available at http://www.montgomeryadvertiser.com/specialreports/ TENcommandments/StoryAlabamamoore15w.htm (reporting Alabama Supreme Court Justice Moore's defiance of a federal court order to remove a monument of the Ten Commandments).
43. The Supreme Court has been wary of congressional attempts to "amend" the Constitution outside of Article V. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 529 (1997) (overturning the Religious Freedom Restoration Act, and stating that upholding the Act would mean that "[s]hifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V").
44. Sager, supra note 29.
45. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 900 (1984) (arguing that congressional power over federal jurisdiction is subject to limitations "inferable from other provisions of the Constitution").
46. The depth of the literature makes even a cursory sampling nearly impossible. For some of the most recent and provocative thinking on the subject of the process of constitutional amendment, see Ackerman, Discovering the Constitution, supra note 18, at 1051-57;
47. Amar, Philadelphia Revisited, supra note 20;
48. Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386, 387 (1983);
49. Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-seventh Amendment, 103 YALE L.J. 677 (1993). Discussion of the "convention method" of constitutional amendment - which I will discuss in even less detail, because it has never been successfully pursued - has spawned an almost embarrassing richness of scholarship. See infra note 52.
50. Space constraints prevent even a partial listing of the scholarship addressing the content of particular amendments. Suffice it to say, entire academic careers (not to mention thousands of reported federal decisions) have been spent unpacking the meaning of a handful of words from the First and Fourteenth Amendments.
51. See, e.g., Neal Katyal, Equality in the War on Terror, 59 STAN. L. REV. 1365, 1379-81 (2007) (arguing that jurisdiction-stripping proposals should be governed by the Fourteenth Amendment's guarantee of equality).
52. See Tribe, supra note 18, at 445 ("In short, remembering that it is an amendment to the Constitution we are considering may be almost as important as remembering that it is a Constitution we are, in the end, amending.").
53. Akhil Reed Amar, Comment, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 157 n.180 (1992) (arguing that neither of two different-in-time amendments "'trumps' the other; rather they must be synthesized into a coherent doctrinal whole").
54. Alex Kozinski & Eugene Volokh, Commentary, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1650 (1993) ("[W]hile the chronology might mean the Thirteenth Amendment could alter the First, this doesn't mean it does alter it. The notion that every constitutional amendment is a partial repeal of every previously-enacted constitutional provision has hair-raising implications. Does the Sixteenth Amendment, which grants Congress the power to 'lay and collect taxes on incomes, from whatever source derived,' authorize a tax levied only on income derived from sale of antigovemment literature, or a tax only on blacks? Does it allow collection techniques that violate the Fourth Amendment? Does the Fourteenth Amendment's Enforcement Clause authorize ex post facto laws, or the suspension of habeas corpus?" (footnotes omitted)).
55. See Granholm v. Heald, 544 U.S. 460, 484 (2005) (expressing the "framers' clear intention of constitutionalizing the Commerce Clause"); Craig v. Boren, 429 U.S. 190, 206 (1976) (finding that "the Twenty-first Amendment does not pro tanto repeal the Commerce Clause" and that "the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful").
56. Compare U.S. CONST. amend. XVII (providing that senators shall "be elected by the people" of each state), with id. art. I, § 3 (stating that the Senate was to be "chosen by the Legislature" of each state).
57. Id. art. I, § 8, cl. 8 (giving Congress power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
58. See Eldred v. Ashcroft, 537 U.S. 186, 221 (2003) (suggesting that copyright statutes may raise First Amendment problems if they lack "built-in free speech safeguards").
59. Cf. U.S. CONST. amend. I (failing to refer to the Copyright Clause).
60. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 907 (1996) ("'Congress' in the First Amendment is taken, without controversy, to mean the entire federal government, even though elsewhere 'Congress' certainly does not include the courts or the President."). Those who are already familiar with the jurisdiction- stripping literature, which I discuss below in Part II.B, may note that these arguments have much in common with the "external constraints" approach. See infra notes 191-212 and accompanying text.
61. Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 96 (1961) ("[C]ongressional power in this sphere, as in all spheres, is limited by the First Amendment."); Trop v. Dulles, 356 U.S. 86, 106 n.2 (1958) (Brennan, J., concurring) (noting that the First Amendment "of course would have the effect in appropriate cases of limiting congressional power otherwise possessed"); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589 (1935) ("The bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment."). Adrian Vermeule and Ernest Young argue that "there is little reason to think that the Fourteenth Amendment's framers and ratifiers had any special insight into the Fifth Amendment's original meaning. It is an empirical question whether the framers of later provisions are skilled interpreters of the original meaning of earlier provisions . . . ." Adrian Vermeule & Ernest A. Young, Commentary, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730, 765 (2000).
62. Kurt Lash's recent historical analysis of the Ninth Amendment, by contrast, suggests that the drafters of later-in-time amendments did consider (and alter) the content of prior amendments. Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. (forthcoming 2008) (manuscript at 6-7, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=953008) (arguing that the Ninth Amendment's reference to "'certain rights' enumerated in the Constitution" includes, at a minimum, "the rights 'numbered' or listed in the first eight amendments to the Constitution"); see also id. (manuscript at 23) ("Also, even if the Ninth was originally understood as a guardian of local autonomy, later amendments substantially altered the original federalist structure of the Ninth Amendment.").
63. The same is true of the relationship between different-in-time amendments. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) ("[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." (citation omitted)).
64. Williams v. Rhodes, 393 U.S. 23, 29 (1968) (striking down Ohio election laws on equal protection grounds).
65. See infra Part I.C.
66. Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. REV. 865, 874 (1960) ("The phrase 'Congress shall make no law' is composed of plain words, easily understood. . . . Neither as offered nor as adopted is the language of this amendment anything less than absolute."). The Supreme Court has rejected Justice Black's absolutist position in a variety of cases, see, e.g., Konigsberg v. State Bar, 366 U.S. 36, 44 (1961), and various scholars have debated the merits of his approach as opposed to a "balancing" or "categorization" test.
67. See, e.g., John H. Ely, Comment, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975);
68. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 912-16 (1963) (discussing "ad hoc balancing" and "absolute" tests);
69. Laurent B. Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424, 1440-45 (1962) (analyzing seven objections to the balancing approach).
70. See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 270, 276 (1981) (differentiating between cases "covered" by the First Amendment and those cases "protected" thereunder, with the former referring to whether a certain speech act receives constitutional protection at all and the latter referring to the level of protection it receives).
71. See Walter F. Murphy, An Ordering of Constitutional Values, 53 S. CAL. L. REV. 703, 754-57 (1980);
72. Walter F. Murphy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, 32 AM. J. JURIS. 1, 22 (1987);
73. Walter F. Murphy, The Right to Privacy and Legitimate Constitutional Change, in THE CONSTITUTIONAL BASES OF POLITICAL AND SOCIAL CHANGE IN THE UNITED STATES 213, 227 (Shlomo Slonim ed., 1990);
74. cf. Thomas M. Cooley, The Power to Amend the Federal Constitution, 2 MICH. L.J. 109, 118 (1893) ("Now an amendment . . . must be in harmony with the thing amended . . . . It must not be something so entirely incongruous that, instead of amending or reforming it, it overthrows or revolutionizes it.");
75. John R. Vile, The Case Against Implicit Limits on the Constitutional Amending Process, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 191, 213 (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION] (arguing that the Constitution's implicit limits on Article V "wisely protect[] liberty by guarding against the transient whims of the majority"). Donald Lutz has also considered the possibility of amendment as "periodic replacement of the entire document."
76. Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra, at 237, 237.
77. For highlights of the debate regarding the constitutional convention method, see generally Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189 (1972) [hereinafter Black, A Letter to a Congressman];
78. Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 YALE L.J. 957 (1963) [hereinafter Black, The Proposed Amendment of Article V];
79. Walter E. Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 YALE L.J. 1623 (1979);
80. Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 GA. L. REV. 1 (1979);
81. and William W. Van Alstyne, Does Article V Restrict the States to Calling Unlimited Conventions Only? - A Letter to a Colleague, 1978 DUKE L.J. 1295.
82. For a discussion of the constitutional convention method, see Laurence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced Budget Amendment, 10 PAC. L.J. 627, 628-30 (1979).
83. Sanford Levinson notes that some state constitutions differentiate between "amendment" and "revision" and prescribe different procedures for the two. Sanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION, supra note 51, at 13, 19 (citing Gene R. Nichol, Constitutional Judgment, 91 MICH. L. REV. 1107, 1118 (1993)).
84. See Walter F. Murphy, Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity, in RESPONDING TO IMPERFECTION, supra note 51, at 163, 176-77 (distinguishing between amending, revising, and transforming a constitution).
85. Interestingly, "amendments" to bills do not serve a strike-out function, at least not always. They are often attached as "riders" that do not "amend," nor necessarily even relate to, the subject mater of the bill itself. See Commonwealth v. Burnett, 48 A. 976, 977 (Pa. 1901) (describing a rider as a "new and unrelated enactment or provision"); Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. PITT. L. REV. 803, 842-43 (2006) (explaining the process by which committee members attach riders).
86. Cf. House v. McMullen, 100 P. 344, 345 (Cal. Ct. App. 1909) ("The particulars wherein it was sought to revise the written agreement are, as stated by respondent: 'First, to substitute the word 'exchange' for the word 'sell'; second, to insert a more particular description of the real property which is the subject matter of the contract; third, to strike out a certain term in the contract; and, fourth, to insert a certain other term in the contract.'").
87. See infra Part II.B.
88. See U.S. CONST. art. I, §§ 8-9.
89. See infra notes 100-10 and accompanying text for a retelling of the framers' brief discussion about whether the amendments should be interwoven with the Constitution's text or appended to the end.
90. For arguments that Article V is the only way in which the Constitution may be amended, see generally David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION, supra note 51, at 117;
91. David R. Dow, When Words Mean What We Believe They Say: The Case of Article V, 76 IOWA L. REV. 1 (1990) [hereinafter Dow, The Case of Article V];
92. and John R. Vile, Legally Amending the United States Constitution: The Exclusivity of Article V's Mechanics, 21 CUMB. L. REV. 271 (1991).
93. For arguments to the contrary, see Ackerman, Constitutional Politics, supra note 18; Ackerman, Discovering the Constitution, supra note 18;
94. Amar, Philadelphia Revisited, supra note 20;
95. and Akhil Reed Amar, Popular Sovereignty and Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 51, at 89. I limit the discussion here to amendments which have been passed through Article V's enumerated processes. I thus do not consider here the impact, if any, of "amendments" occurring outside the confines of Article V. My initial sense is that the general framework I have advanced should translate without much problem to any kind of amendment, no matter the process by which it was approved.
96. I also have not addressed the impact on my Exceptions Clause analysis of what many have referred to as "judicial amendments." See, e.g., JOHN R. VILE, CONSTITUTIONAL CHANGE IN THE UNITED STATES: A COMPARATIVE STUDY OF THE ROLE OF CONSTITUTIONAL AMENDMENTS, JUDICIAL INTERPRETATIONS, AND LEGISLATIVE AND EXECUTIVE ACTIONS 35-55 (1994) (considering Supreme Court decisions and their impact on constitutional change). Again, the analysis would be the same.
97. Ackerman, Discovering the Constitution, supra note 18, at 1058; see also Erwin Chemerinsky, Amending the Constitution, 96 MICH. L. REV. 1561, 1563 (1998) (reviewing DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION 1776-1995 (1996)) ("The amendment process is thus not peripheral to the constitution, but is its essence.").
98. U.S. CONST. art. V.
99. See also infra notes 290-91 and accompanying text for a discussion of the Civil War-era Corwin Amendment, which would have explicitly amended Article V by further limiting states' power to abolish slavery.
100. U.S. CONST. art. V.
101. Id.
102. David E. Kyvig, Arranging for Amendment: Unintended Outcomes of Constitutional Design, in UNINTENDED CONSEQUENCES OF CONSTITUTIONAL AMENDMENT, supra note 27, at 9, 18.
103. U.S. CONST. art. V.
104. Although nine-thirteenths is actually slightly less than three-fourths, Kyvig notes that the number nine was chosen through a "process of groping toward compromise," and that Connecticut, New Jersey, Georgia, and Maryland supported a ten-of-thirteen requirement. Kyvig, supra note 66, at 21. Incidentally, three-fourths is almost precisely the fraction of the framers who signed the original document in Philadelphia. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475, 514 (1995) (noting that thirty-nine of the fifty-five delegates - seventy-one percent - signed the convention's final proposal).
105. Ackerman, Discovering the Constitution, supra note 18, at 1059 ("[T]he Article V procedure for calling a 'Convention' is obviously modeled upon the process by which the 1787 Convention was called into being.");
106. see also Black, The Proposed Amendment of Article V, supra note 52, at 963 (suggesting that the Founders were thinking of the Philadelphia Convention when they created the "convention" method of amendment).
107. As George Washington himself would write a few months later, the People (for it is with them to Judge) can as they will have the advantage of experience on their Side, decide with as much propriety on the alterations and amendments which are necessary . . . . I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us. Letter from George Washington to Bushrod Washington (Nov. 10, 1878), in THE ORIGINS OF THE AMERICAN CONSTITUTION: A DOCUMENTARY HISTORY 81, 83 (Michael Kammen ed., 1986). In The Federalist No. 85, however, Hamilton argued that in practical terms amendments would be easier to ratify than the original Constitution: [E]very amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point, no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently whenever nine or rather 10 states, were united in the desire of a particular amendment, that amendment must infallibly take place. There can therefore be no comparison between the facility of effecting an amendment, and that of establishing in the first instance a complete constitution. THE FEDERALIST NO. 85, at 592 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (footnote omitted).
108. See, e.g., ACKERMAN, WE THE PEOPLE, supra note 18; see also U.S. CONST. pmbl.
109. A LexisNexis search conducted on March 22, 2008 in the "US Law Reviews and Journals, Combined" database for the phrase "Articles in Addition To, and Amendment of" - the second Preamble's equivalent of the first's "We the People" - turns up only thirteen hits, most of them in articles that simply reproduce the Constitution in its entirety. A search for "We the People," unsurprisingly, results in more hits than LexisNexis is able to report (at least 3000).
110. U.S. CONST. amends. I-X pmbl.
111. See id. arts. I-VII.
112. Id. amends. I-X pmbl.
113. Id.; see id. art. V.
114. See supra notes 66-69.
115. See also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67 (1873) (describing the original Constitution and its first twelve amendments as being "historical and of another age" since "three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument").
116. Ackerman describes this as "multigenerational synthesis." Ackerman, Constitutional Politics, supra note 18, at 517;
117. see also Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1793-1809 (2007) [hereinafter Ackerman, The Living Constitution] (describing the "Conversation Between Generations").
118. Limitations on space prevent full consideration of all the amendments, but of course the thesis presented here would benefit from such discussion.
119. Some have argued that amendments are necessary for the very legitimacy of the Constitution. Dellinger, supra note 33, at 387 ("An unamendable constitution, adopted by a generation long since dead, could hardly be viewed as a manifestation of the consent of the governed.").
120. Erwin Chemerinksy, Protecting the Spending Power, 4 CHAP. L. REV. 89, 90 (2001) ("Under the Articles of Confederation, the limited federal government had no taxing power and therefore no revenue to spend.").
121. Richard A. Epstein, Covenants and Constitutions, 73 CORNELL L. REV. 906, 926 n.40 (1988) ("A fair reading of the Articles of Confederation made it clear that they could be abrogated only by the unanimous consent of all the states.").
122. DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 37 (1996).
123. Kyvig points out that "the drafters of the 1787 Constitution acknowledged its revisionary character as they declared it an attempt to 'form a more perfect union.'" Id. at 42.
124. Kyvig, supra note 66, at 18.
125. Dow, The Case of Article V, supra note 60, at 41 ("As was the case with the Federalist Papers, the issue of the article V amendment process received relatively little attention at the convention."); see also id. at 41 n.202 (listing "the entirety of references in the records of the Constitutional Convention to the amendment process").
126. The only significant discussion was an oft-repeated statement from George Mason: The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such abuse, may be the fault of the Constitution calling for amendmt [sic]. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 202-03 (Max Farrand ed., 1911).
127. Id. at 22.
128. Carlos E. González, Representational Structures Through Which We the People Ratify Constitutions: The Troubling Original Understanding of the Constitution's Ratification Clauses, 38 U.C. DAVIS L. REV. 1373, 1445 (2005) ("Article V was the product of two brief and unreflective sessions during the last week of the Philadelphia drafting convention.").
129. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 88, at 558-59.
130. Id.
131. Id. at 559. There was apparently no dissent to this proposal. Id.
132. KYVIG, supra note 84, at 66 ("Article V, the 1787 U.S. Constitution's provision for its own amendment, became the hinge upon which swung acceptance of the Philadelphia convention's proposal."); see also id. at 66-86 (describing Article V's role in the ratification and adoption of the U.S. Constitution).
133. I owe my understanding of the Bill of Rights' placement to Kyvig's illuminating discussion of this debate. For more detail and better storytelling see Kyvig, supra note 66, at 28-30.
134. Brian C. Kalt, The People's Forest and Levy's Trees: Popular Sovereignty and the Origins of the Bill of Rights, 17 CONST. COMMENT. 119, 124 n.9 (2000) (reviewing LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS (1999)).
135. David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. CHI. L. REV. 775, 777 (1994) (listing some of the holdover members and describing the First Congress as a continuation of the Philadelphia Convention).
136. See, e.g., New York Ratification Convention (July 26, 1788), in GEORGE ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY app. I-2 at 305 (1995) (including the Declaration or Bill of Rights);
137. Virginia Ratification Convention (June 26-27, 1788), in ANASTAPLO, supra, app. I-1 at 299 (including the Proposed Declaration or Bill of Rights).
138. Kalt, supra note 96, at 124-25.
139. James Madison's Proposals in the House of Representatives (June 8, 1797), in ANASTAPLO, supra note 98, app. J-1 at 315, 316-17. Interestingly, the Confederate Constitution of 1861, which adopted wholesale nearly ninety percent of the Federal Constitution, effectuated Madison's plan and rearranged the Bill of Rights, interspersing them throughout the rest of the Constitution.
140. See generally MARSHALL L. DEROSA, THE CONFEDERATE CONSTITUTION OF 1861: AN INQUIRY INTO AMERICAN CONSTITUTIONALISM (1991). The first eight amendments were placed in Article I, Section 9, along-side the other restraints on congressional power. Id. at 142. The Ninth and Tenth Amendments became part of Article VI. Id. at 150.
141. James Madison's Proposals in the House of Representatives (June 8, 1797), supra note 98, app. J-1 at 317-18.
142. The Congressional Register, 13 August 1789, in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 112, 117 (Helen E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS].
143. KYVIG, supra note 84, at 100-01.
144. Id. at 100 (quoting The Congressional Register, 13 August 1789, supra note 102, at 117).
145. The Congressional Register, 13 August 1789, supra note 102, at 118 (emphasis added).
146. Id. at 120.
147. Id.
148. Id. at 121-22.
149. Id. at 122.
150. Kyvig, supra note 66, at 29.
151. The most famous example, of course, is Justice Douglas's opinion in Griswold v. Connecticut, 381 U.S. 479, 484 (1965), in which he found that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Justice Black, in dissent, pointed out that the argument-from-fuzziness can cut both ways, diluting rights just as easily as it can expand them. Id. at 509-10 (Black, J., dissenting).
152. The right to privacy, which largely traces its lineage to Griswold, is perhaps the most prominent example. See Lawrence v. Texas, 539 U.S. 558, 564-65 (2003); Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Griswold in accepting a right to personal privacy and finding a limited right to abortion); Eisenstadt v. Baird, 405 U.S. 438, 452-54 (1972) (citing Griswold for an individual's right to privacy and use of contraceptives).
153. Alexander Hamilton famously referred to the judiciary as the "least dangerous" branch. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 70, at 522-23; see also RAOUL BERGER, CONGRESS V. THE SUPREME C4 184 (1969) ("Legislative, not judicial, despotism worried the Founders; judges were trusted, legislators were not.").
154. Kyvig, supra note 66, at 30 (citing Letter from James Madison to Alexander White (Aug. 24, 1789), in 12 THE PAPERS OF JAMES MADISON 352 (Charles F. Hobson et al. eds., 1979)).
155. U.S. CONST. amend. XVIII, § 1.
156. Id. art. III, § 2, cl. 2.
157. See Strauss, supra note 44, at 907 (explaining that the use of "Congress" in the First Amendment refers to the entire federal government, even though other uses of "Congress" do not).
158. This question received one of its most famous treatments in Adamson v. California, 332 U.S. 46, 68-123 (1947) (Black, J., dissenting), with Justice Black playing his usual role as the greatest proponent of the full-incorporation theory, and Justice Frankfurter acting as his foil, id. at 59-68 (Frankfurter, J., concurring).
159. See supra notes 48-54 and accompanying text.
160. See, e.g., ACKERMAN, WE THE PEOPLE, supra note 18;
161. see also Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION, supra note 51, at 145, 160-61 ("The process of constitutional amendment, therefore, can take place on one of two levels. On the constitutional level, it can take place within the contours of the constitution itself . . . . [But] the process of constitutional amendment may also take place at another level, when these logically and politically antecedent conditions are themselves amended.").
162. See, e.g., Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment, in UNINTENDED CONSEQUENCES OF CONSTITUTIONAL AMENDMENT, supra note 27, at 110, 110 (describing the "substantial - and some might say overwhelming - body of scholarship on the 'intent,' 'meaning,' and 'understanding' of the Fourteenth Amendment").
163. Levinson, supra note 53, at 33.
164. Ackerman, Constitutional Politics, supra note 18, at 524;
165. see also Ackerman, Discovering the Constitution, supra note 18, at 1056 (describing "structural" amendments).
166. Ackerman, Constitutional Politics, supra note 18, at 522 (describing the Twenty-sixth Amendment as such because "[a]ll it did was change the voting age from twenty-one to eighteen. Nobody looked upon it as the culminating expression of a broad-based effort to revise the foundational principles of our higher law").
167. There is also a lengthy literature addressing the limitations, if any, on the amending power, and whether courts should have any power to consider the validity of amendments. See, e.g., Dellinger, supra note 33; Tribe, supra note 18. The debate is long-running indeed. For older examples, see William L. Marbury, The Limitations upon the Amending Power, 33 HARV. L. REV. 223, 228 (1919) (arguing that amendments may not take away the legislative power of the states),
168. and William L. Frierson, Amending the Constitution of the United States, 33 HARV. L. REV. 659, 662-63 (1920) (arguing in response to Marbury that states' rights are already adequately protected and that the Supreme Court should have no power to approve or disapprove amendments).
169. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 748 (1999).
170. Id. at 785.
171. Id. at 755-58 (describing Marshall's use of intratextualism in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
172. Id. at 758-63 (discussing Story's use of intratextualism in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)).
173. Id. at 748-49.
174. Id. at 748.
175. By pointing to the location of the amendments as well as their wording, I am admittedly blending intertextualism with what Amar calls "[a]nother brand of holistic textualism," which "squeezes meaning from the Constitution's organization chart." Id. at 797 n.197.
176. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1205 (1991).
177. In this sense, intratextualism as it applies to the amendments becomes a kind of intertextualism that connects the "separate" amendments and Constitution.
178. U.S. CONST. amend. I.
179. See Vermeule & Young, supra note 45, at 738 ("It is critical to understand . . . that clause-bound interpretation is itself a component of intratextualism. Standing alone, even a strong version of intratextualism is necessarily incomplete.").
180. Amar, supra note 126, at 795.
181. I note that my argument here - which requires judges to connect two disparate parts of the Constitution - is, like Amar's intratextualism, vulnerable to the criticism that it demands too much of judges whose interpretive capacities are limited. See Vermeule & Young, supra note 45, at 731. However, I do not think that this objection is fatal, nor do I see a better alternative. The First Amendment must mean something, and because the amendments are not included in the Constitution as strike-throughs, some interpreter must determine their relationship to the rest of the Constitution. Cf. Stone v. INS, 514 U.S. 386, 397 (1995) ("When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.").
182. U.S. CONST. art. IV, § 3, cl. 2.
183. Id. art. I, § 8, cl. 18. The example, though not the argument, comes from Amar, supra note 126, at 794.
184. Despite the comparative length and complexity of statutes vis-à-vis the Constitution, Congress is presumed to know the content of the statutes it is amending. See William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 70-78 (1988) (suggesting use of an acquiescence rule in interpreting legislative inaction).
185. For those few amendments which are more properly considered additions - or, in Ackerman's terms, "superstatutes," see supra note 124 and accompanying text - the drafters may have been more concerned with omissions from the Constitution than with problems with its terms.
186. U.S. CONST. amend. I.
187. Id. art. I. § 8, cl. 18.
188. Amar, supra note 126, at 814.
189. Id.
190. 2 U.S. (2 Dall.) 419 (1793); see also James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 CAL. L. REV. 555, 651 (1994) ("Everyone appears to agree that the Eleventh Amendment was passed in response to Chisholm.").
191. Chisholm, 2 U.S. (2 Dall.) at 419.
192. U.S. CONST. amend. XI.
193. The Eleventh Amendment is one of four amendments passed to "overrule" specific decisions of the Supreme Court; the other amendments are Section 1 of the Fourteenth, the Sixteenth, and the Twenty-sixth. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE SUPREME COURT 49 & n.133 (1980). None of them, however, identify the decision they were intended to overturn. Section 1 of the Fourteenth, for example, fails to identify Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), as its intended target. Slaughter-House Cases, 83 U.S. (1 Wall.) 36, 72-74 (1872) (noting that "the first clause of the first section [of the Fourteenth Amendment] was framed" primarily to reverse Dred Scott); CHOPER, supra, at n.133.
194. Justice Douglas' famous invocation of "penumbras" in Griswold included the First, Third, Fourth, Fifth, and Ninth Amendments. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
195. See supra notes 111-12 and accompanying text (arguing that the placement of amendments at the end of the Constitution, and the inclusion of non-specific language, allows a rights-expansive jurisprudence that would not be possible if they were simply made as strike-outs to the original text).
196. See, e.g., CITIZENS FOR THE CONSTITUTION, GREAT AND EXTRAORDINARY OCCASIONS: DEVELOPING GUIDELINES FOR CONSTITUTIONAL CHANGE 7 (1999) (suggesting guidelines for constitutional amendments).
197. See supra note 51.
198. See supra note 60.
199. See supra note 52.
200. U.S. CONST. art. III, § 2, cl. 2.
201. I thus set aside for now Section 5 of the Fourteenth Amendment and other Congress-empowering amendments. See id. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."); see also infra notes 239-40 and 252-56 and accompanying text.
202. See Ralph A. Rossum, Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court: The Letter and the Spirit of the Exceptions Clause, 24 WM. & MARY L. REV. 385, 389 (1983) ("Those who argue against Congress' power to make exceptions to the Court's appellate jurisdiction . . . . are forced to deny an explicit power of Congress, expressly granted by the Constitution . . . .").
203. U.S. CONST. art. III, § 2, cl. 2 (emphasis added).
204. Sager, supra note 29, at 51; see also Julius Goebel, Jr., Antecedents and Beginnings to 1801, in 1 HISTORY OF THE SUPREME COURT OF THE UNITED STATES 240 (Paul A. Freund ed., 1971) (noting that the Clause "was not debated" by the Convention).
205. For an exhaustive recounting of what drafting history there is, see Laurence Claus, The One Court That Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 GEO. L.J. 59, 64, 81-87 (2007) (asserting that the "complaint that the Supreme Court's appellate jurisdiction would let distant judicial elites substitute their will for the findings of juries" was "[a]lmost fatal to the Constitution's adoption").
206. BERGER, supra note 113, at 286-89 (arguing that the Exceptions Clause was originally intended to give Congress power over appellate review of fact findings); Claus, supra note 161, at 64; Gressman & Gressman, supra note 29, at 526-27.
207. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803), Chief Justice Marshall paraphrased Article III as stating that "[t]he judicial power of the United States is extended to all cases arising under the constitution."
208. Congress has never granted federal courts complete jurisdiction over all cases "arising under" the Constitution or federal law. It did, however, extend general federal question jurisdiction to the lower federal courts in 1875. Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, 470 (current version at 28 U.S.C. § 1331 (2000)).
209. The Exceptions Clause does not give Congress power to expand or contract the original jurisdiction of the Supreme Court. Marbury, 5 U.S. (1 Cranch) at 174-75; Sager, supra note 29, at 24.
210. See infra Part II.B for a discussion of possible inherent or externally imposed limitations on this power.
211. See Palmore v. United States, 411 U.S. 389, 407 (1973) ("It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction.").
212. One striking illustration of Congress's broad power over appellate jurisdiction, at least to modern readers, is the fact that between the passage of the Judiciary Act of 1789, 1 Stat. 73, and the Act of December 23, 1914, 38 Stat. 790, the Court had no appellate jurisdiction over state court decisions that struck down state laws that conflicted with the Federal Constitution. See RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 320-21 (5th ed. 2003).
213. Perhaps the point could be put more finely. Amendments passed as a result of a temporary crest in popularity, or a concerted but fleeting campaign - the Eighteenth Amendment, establishing Prohibition, is the best example - are those most vulnerable to jurisdiction-stripping proposals, because the temporary majorities that created them are likely to dissolve.
214. See, e.g., Carl Hulse & David D. Kirkpatrick, DeLay Says Federal Judiciary Has 'Run Amok,' Adding Congress Is Partly to Blame, N.Y. TIMES, Apr. 8, 2005, at A21.
215. See supra notes 8-9 (discussing the Military Commissions Act).
216. S. 210, 98th Cong. (1983) (stripping in entirety lower federal court jurisdiction over abortion cases and severely curtailing the Supreme Court's jurisdiction over the same); see also H.R. 3225, 97th Cong. § 4 (1981) (same); S. 158, 97th Cong. § 2 (1981) (limiting lower court jurisdiction over abortion cases).
217. H.R. 521, 98th Cong. (1983).
218. See infra Part II.C.
219. Stuart S. Nagel, Court-Curbing Periods in American History, 18 VAND. L. REV. 925, 926 tbl.1 (1965) (demonstrating that jurisdiction-stripping efforts between 1802 and 1957 were concentrated in seven time periods).
220. See Shirley M. Hufstedler, Comity and the Constitution: The Changing Role of the Federal Judiciary, 47 N.Y.U. L. REV. 841, 842-43 (1972) ("[C]ongressional reaction to issues of federal jurisdiction has always been fitful and . . . the fits are usually induced by strong pressures imposed by particular events or by powerful constituencies that seek to influence results in particular causes that concern them."). Senator Jesse Helms, a strong proponent of many jurisdiction-stripping bills, made the point quite clearly: "[T]here is more than one way to skin a cat, and there is more than one way for Congress to provide a check on arrogant Supreme Court Justices who routinely distort the Constitution to suit their own motions [sic] of public policy." 130 CONG. REG. 5919 (1984) (statement of Sen. Helms).
221. H.R. 3313, 108th Cong. (2004).
222. 28 U.S.C. § 1738C (2000) (providing that no state shall be required to give effect to another state's recognition of same-sex marriage).
223. The latter can be achieved only through another amendment, which has happened only once. See supra note 27.
224. See Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741, 778 (1984).
225. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 n.15 (1982).
226. Charles E. Rice, Congress and the Supreme Court's Jurisdiction, 27 VILL. L. REV. 959, 961 (1982); see U.S. CONST. art. IV, §§ 1, 3; see also D.C. Court of Appeals v. Feldman, 460 U.S. 462, 484 n.16 (1983) ("We have noted the competence of state courts to adjudicate federal constitutional claims."); N. Pipeline, 458 U.S. at 64 n.15 ("[V]irtually all matters that might be heard in Art. III courts could also be left by Congress to state courts."); Testa v. Katt, 330 U.S. 386, 394 (1947) (holding that state courts cannot discriminate against the enforcement of federal rights).
227. KENNETH R. THOMAS, CONG. RESEARCH SERV., LIMITING COURT JURISDICTION OVER FEDERAL CONSTITUTIONAL ISSUES: "COURT- STRIPPING" 2 (2005), available at http://assets.opencrs. com/rpts/RL32171_20050124.pdf ("[P]roponents of these proposals are generally critical of specific decisions made by the federal courts in the particular substantive area, and the proposals are represented as intended to influence the results or applications of such cases."); see also Tribe, supra note 10, at 145 ("Unless Congress is merely replacing one remedial structure with another that is as protective of the constitutional right at stake, withdrawing a basic civil or criminal line of defense from such a right is tantamount to authorizing its deprivation." (footnote omitted)). A jurisdiction-stripping bill could also be used more aggressively, in conjunction with other federal legislation. For example, Congress could pass a law that simultaneously criminalizes certain speech acts that are at the boundary of the First Amendment and also strips federal courts of jurisdiction to hear challenges to the law. The Guantánamo jurisdiction-stripping legislation, in conjunction with the executive's expansion of the military tribunal system, has had substantially this effect.
228. See Leonard G. Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 VILL. L. REV. 929, 936-38 (1982) (arguing that stripping the Supreme Court's appellate review would leave lower courts free to ignore existing Court precedent);
229. see also Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981015 (describing state courts' defiance of Supreme Court precedent, sometimes with the Court's apparent blessing).
230. Laurence Sager famously characterized these jurisdiction-stripping proposals as "lewd wink[s]" from Congress to the state courts. Sager, supra note 29, at 41.
231. U.S. CONST. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
232. Id. amends. IV-VI (protecting against unreasonable searches and seizures and guaranteeing due process and other criminal prosecution rights).
233. See Fellow, supra note 19, at 1121-22 (noting that "the mere possibility of action . . . prompted a congressional response" in the form of "court-curbing bills"). Jurisdiction stripping does not reverse Supreme Court precedent and would (at least theoretically) have the perverse effect (from their proponents' perspective) of insulating those cases from federal review. See Ira Mickenberg, Abusing the Exceptions and Regulations Clause: Legislative Attempts to Divest the Supreme Court of Appellate Jurisdiction, 32 AM. U. L. REV. 497, 537 (1983) ("Should the Supreme Court be divested of jurisdiction over a particular area, the Court's last pronouncement on the subject would constitute the definitive, unalterable law, which lower courts would be obliged to follow forever."). One might argue that this point undermines my argument that amendments and jurisdiction-stripping legislation are closely related, because it suggests that jurisdiction stripping is a proactive measure used (albeit somewhat inartfully) to freeze Court precedent into place, while amendments are a reactive measure to overturn decisions. There is merit to this point, though I believe that the gap it illustrates is small.
234. See, e.g., S.J. Res. 73, 98th Cong. (1983) ("Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer."); H.R.J. Res. 133, 98th Cong. (1983). These amendment proposals have a longer history than many realize. Consider an amendment proposed by Christian fundamentalists in the 1800s, which would have read, "Almighty God [is] the Author of National Existence and the source of all power and authority in Civil Government, Jesus Christ [is] the Rule of Nations, and the Bible [is] the formation of law and supreme rule for the conduct of nations." KYVIG, supra note 84, at 189; see also id. at 190 ("Between 1894 and 1910 Congress received at least nine proposals to alter the Constitution's preamble to express trust in or acknowledge the authority of a Christian God.").
235. See infra Part II.C (discussing acts which would strip federal jurisdiction over school prayer cases).
236. See, e.g., Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1948) (Frankfurter, J., dissenting on other grounds) ("Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice."); Yakus v. United States, 321 U.S. 414, 472-73 (1944) (Rutledge, J., dissenting on other grounds) ("Congress has plenary power to confer or withhold appellate jurisdiction . . . ."); see also THE FEDERALIST NO. 80, at 481 (Alexander Hamilton) (Clinton Rossier ed., 1961) ("[T]he national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove . . . inconveniences."), cited in Glidden Co. v. Zdanok, 370 U.S. 530, 567-68 (1962); William W. Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 ARIZ. L. REV. 229, 260 (1973) ("The power to make exceptions to Supreme Court appellate jurisdiction is a plenary power. It is given in express terms and without limitation . . . .").
237. Sager, supra note 29, at 37 (acknowledging, although not endorsing, the "sense that Congress is immune from full constitutional scrutiny when the distribution of jurisdiction is at stake"); Harrison Tweed, Provisions of the Constitution Concerning the Supreme Court of the United States, 31 B.U. L. REV. 1, 1 (1951) ("There are comparatively few who recognize that under the express words of the Constitution . . . Congress can largely, if not entirely, deprive the Court of this [appellate] jurisdiction.").
238. 74 U.S. (7 Wall.) 506 (1868).
239. Id. at 514.
240. Id. at 513.
241. Id. at 514.
242. Id. at 515 ("The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867.").
243. 75 U.S. (8 Wall.) 85, 105 (1868).
244. Id. at 102; see also id. at 98 ("[A]ppellate jurisdiction is subject to such exceptions, and must be exercised under such regulations as Congress, in the exercise of its discretion, has made or may see fit to make.").
245. Id. at 103.
246. 80 U.S. (13 Wall.) 128, 128-29 (1871).
247. See id. at 147.
248. Id.
249. See also INS v. St. Cyr, 533 U.S. 289, 299-300 (2001); Felker v. Turpin, 518 U.S. 651, 654 (1996).
250. Senator Barry Goldwater, troubled by jurisdiction-stripping proposals advanced by fellow Republicans, said in 1982: What particularly troubles me about trying to override constitutional decisions of the Supreme Court by a simple bill is that I see no limit to the practice. There is no clear and coherent standard to define why we shall control the court in one area but not another. . . . . . . . Whether or not [C]ongress possesses the power of curbing judicial authority, we should not invoke it. 128 CONG. REC. 2243 (1982).
251. See Tribe, supra note 10, at 132 ("But surely the proponents of that view [that Congress must have plenary power over federal jurisdiction] have pushed their point too far.").
252. See Felker, 518 U.S. at 667 (Souter, J., concurring) (giving examples of situations where "the question whether the statute exceeded Congress's Exceptions Clause power would be open"); FALLON ET AL., supra note 168, at 341-42 ("[T]he limits of congressional power over Supreme Court appellate jurisdiction have never been completely clarified.").
253. Gunther, supra note 32, at 900.
254. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953). Although Hart is rightfully seen as the father of the internal constraints theory, his seminal work also implicitly acknowledges the existence of "external" constraints. See id. at 1372 ("Q. You're saying, then, that the power to regulate jurisdiction is subject in part to the other provisions of the Constitution? A. No. It's subject in whole not in part.").
255. Id. at 1365. One might rightfully wonder, based on the discussion of amendment in Part I, to which "plan" one is supposed to look. The original plan of the Founders? Or the new "plan" embodied in the amended Constitution? What if the latter contemplates a lessened judicial role?
256. See, e.g., Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1039 (1982) ("A statute depriving the Supreme Court of appellate jurisdiction over . . . [a] category of constitutional litigation would, however, violate the spirit of the Constitution, even if it would not violate its letter. . . . because the structure contemplated by the instrument makes sense . . . only on the premise that there would be a federal Supreme Court with the power to pronounce uniform and authoritative rules of federal law."); Ratner, supra note 184;
257. Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 168-70 (1960) (arguing that, because an exception is "an exclusion from the application of a general rule or description," by definition "an exception cannot destroy the essential characteristics of the subject to which it applies"); Handman, supra note 28, at 206 ("Essential functions scholars . . . have continued to emphasize the Court's primary role as guarantor of uniformity and supremacy of federal law.").
258. See, e.g., Tribe, supra note 10, at 134-35; William S. Dodge, Note, Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role," 100 YALE L.J. 1013, 1021 (1991).
259. See Redish, supra note 29, at 911 ("[T]he 'essential functions' thesis is little more than constitutional wishful thinking . . . .").
260. See Handman, supra note 28, at 200 ("The doctrine of political accountability, as a generally applicable, external constraint on congressional power, requires Congress to address affirmatively underlying policy concerns when it seeks to revoke Court jurisdiction.").
261. Sager, supra note 29, at 43.
262. Id. at 61-68. Martin Redish characterizes this as a "'floating' essential functions thesis." Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 NW. U. L. REV. 143, 145 (1982).
263. Sager, supra note 29, at 68-80.
264. Id. at 80-89.
265. See, e.g., Gunther, supra note 32, at 898; Redish, supra note 216, at 161-66 (suggesting that the Due Process Clause may provide such an external restraint).
266. Constitutional Restraints upon the Judiciary: Hearings Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 97th Cong. 98, 132 (1981) (statement of William Van Alstyne, Professor of Law, Duke University).
267. See, e.g., THOMAS, supra note 183, at 12 (discussing the Equal Protection Clause); Claus, supra note 161, at 115 (referring to the Suspension, Due Process, and Petition Clauses); Rossum, supra note 159, at 420 ("The due process clause of the fifth amendment plays an especially prominent role in this argument."); Sager, supra note 29, at 78-79; Van Alstyne, supra note 191, at 263-66 (pointing to due process constraints on the Exceptions Clause).
268. Hooper, supra note 6, at 518 ("Simply, congressional measures regulating jurisdiction must comport with the constitutional requirements of equal protection, due process, and separation of powers."); Fellow, supra note 19, at 1131-32 (identifying separation of powers and due process-based arguments as two of the three leading arguments, with essential functions being the third and "weakest").
269. But see Gressman & Gressman, supra note 29, at 523-24 (arguing that jurisdiction-stripping legislation, like all other congressional acts, must be "necessary and proper").
270. See The "Francis Wright," 105 U.S. 381, 385 (1881) ("[W]hile the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe."); Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847) ("By the constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.").
271. See, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (interpreting the Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as not completely stripping habeas jurisdiction in immigration cases because doing so would "raise serious constitutional problems"); see also supra notes 193-203 and accompanying text (discussing McCardle, Yerger, and other jurisdiction-stripping cases); Felker v. Turpin, 518 U.S. 651, 661-62 (1996) ("[S]ince [the AEDPA] does not repeal our authority to entertain a petition for habeas corpus, there can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in violation of Article III, § 2.").
272. 80 U.S. (13 Wall.) 128, 147-48 (1871); see also Tribe, supra note 10, at 140.
273. 169 F.2d 254, 257 (2d Cir. 1948) (footnote omitted), cert. denied, 335 U.S. 887 (1948); accord Lindsey v. Normet, 405 U.S. 56, 77 (1972) (holding that judicial relief "cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause"). Lindsey involved an Oregon law that imposed special burdens on tenants, but not landlords, wishing to appeal adverse decisions. Id. at 64. Thus it did not address, or even mention, the Exceptions Clause.
274. Gunther, supra note 32, at 900; Handman, supra note 28, at 205 (describing the debate about Congress's power over jurisdiction as being "largely between only two schools of thought": the implicit internal constraints theory and a broad reading of congressional power).
275. See Sager, supra note 29, at 61-68.
276. See, e.g., Walter Dellinger, Constitutional Politics: A Rejoinder, 97 HARV. L. REV. 446, 448 (1983) ("Congress is constitutionally free to propose, and the states to ratify, any amendment whatsoever.");
277. Note, The Faith to Change: Reconciling the Oath to Uphold with the Power to Amend, 109 HARV. L. REV. 1747, 1747 (1996) [hereinafter The Faith to Change] ("The orthodox understanding of Article V is that it is unlimited . . . ." (footnote omitted)).
278. See, e.g., WILLIAM F. HARRIS II, THE INTERPRETABLE CONSTITUTION 205 (1993) (arguing that the scope of amendment "is bound by the rules of the American constitutional enterprise");
279. Ackerman, Constitutional Politics, supra note 18, at 469-71 & n.31 (suggesting that a "Christianity Amendment" would be constitutional, but that an amendment repealing dualist democracy might not be); Murphy, supra note 54, at 164; Tribe, supra note 18, at 438-39 (suggesting that some amendments would not "fit" with the constitutional plan).
280. See, e.g., Jeff Rosen, Note, Was the Flag Burning Amendment Unconstitutional?, 100 YALE L.J. 1073, 1074 (1991) (arguing that the Flag Burning Amendment would violate the Ninth Amendment);
281. The Faith to Change, supra note 230 (arguing that Article VII's oath requirement limits the scope of the amendments that Congress may propose under Article V).
282. U.S. CONST. amend. I.
283. See supra notes 44-47 and accompanying text.
284. U.S. CONST. art. I, § 8, cls. 1, 9 ("The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court . . . .").
285. Id. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
286. Id. art. III, § 2, cl. 2.
287. Id. amend. I.
288. Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) (noting that the First Amendment's Establishment Clause means that "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion").
289. See supra note 94; see also Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1133 (1988) ("What united the representatives of all the states, both in Congress and in the ratifying legislatures, was a much more narrow purpose: to make it plain that Congress was not to legislate on the subject of religion, thereby leaving the matter of church-state relations to the individual states." (footnote omitted)).
290. See U.S. CONST. amend. I.
291. Diana B. Henriques, In the Congressional Hopper: A Long Wish List of Special Benefits and Exemptions, N.Y. TIMES, Oct. 11, 2006, at A20.
292. H.R. 4364, 109th Cong. (2005).
293. Id. § 2, cl. 3.
294. Id. § 2, cl. 5.
295. Id. § 3.
296. H.R. 2028, 108th Cong. (2004); see also H.R. 2389, 109th Cong. (2005).
297. Newdow v. U.S. Congress, 328 F.3d 466, 490 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).
298. H.R. 2028, § 2(a).
299. 152 CONG. REC. H5415 (daily ed. July 19, 2006) (statement of Rep. Akin).
300. Stephen Dinan, DeLay Threatens to Curb Courts' Jurisdiction; Vents Ire over Pledge of Allegiance, WASH. TIMES, Mar. 6, 2003, at A04.
301. U.S. CONST. amend. I. The Establishment Clause is a particularly useful example because religiously themed jurisdiction-stripping proposals are among the most common Congress has considered and proposed. In addition to the examples discussed here, see Religious Liberties Restoration Act, S. 1558, 108th Cong. (2003) (limiting jurisdiction of federal courts over cases involving the Pledge of Allegiance, display of the Ten Commandments, and invocation of "In God We Trust"), Constitution Restoration Act of 2005, H.R. 1070, 109th Cong. § 1 (2005) (stripping the Supreme Court of jurisdiction to determine the constitutionality of government official's "acknowledgement of God as the sovereign source of law, liberty, or government"), and Constitution Restoration Act of 2005, S. 520, 109th Cong. (2005) (same).
302. 403 U.S. 602 (1971).
303. Id. at 612-13.
304. Many thanks to William Van Alstyne for bringing this point - among many others - to my attention. Of course he bears no blame for any shortcomings in my attempt to address them.
305. See supra notes 250-51 and accompanying text.
306. See Larkin v. Grendel's Den, Inc., 459 U.S. 116, 125-26 (1982) (asserting that a statute giving churches and schools the power to effectively veto liquor licenses within a 500-foot radius had a "'primary' and 'principal' effect of advancing religion").
307. Id. at 127 ("The challenged statute thus enmeshes churches in the processes of government . . . . Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution." (citation omitted)).
308. Tex. & Pac. Ry. Co. v. Gulf, Colo. & Santa Fe Ry. Co., 270 U.S. 266, 274 (1926) (Brandeis, J.) ("Every court of general jurisdiction has power to determine whether the conditions essential to its exercise exist.").
309. U.S. CONST. art. III, § 2, cl. 1 (emphasis added).
310. Id. art. III, § 2, cl. 2.
311. Handman, supra note 28, at 207.
312. See supra notes 111-14.
313. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (holding that courts had no power to grant the executive's request for an injunction to prevent the New York Times and the Washington Post from publishing a classified study regarding U.S. policy in Vietnam); id. at 718-19 (Black, J., concurring) (finding that the First Amendment limits the President's power to create judicially enforceable prior restraints on the publication of newspaper articles); Strauss, supra note 44, at 907.
314. Felker v. Turpin, 518 U.S. 651, 660 (1996); Ex parte Yerger, 75 U.S. 85, 104-05 (1869) (noting that the jurisdiction-stripping statute of 1867 contained "no repealing words" and stating that "[r]epeals by implication are not favored").
315. See Katyal, supra note 35, at 1367.
316. See Ackerman, Constitutional Politics, supra note 18, at 460 (describing the incorporation debate as "[p]erhaps the most famous modern synthetic problem").
317. Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ("Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.").
318. Interestingly enough, Chief Justice John Roberts, then a Special Assistant to the Attorney General, noted in a memorandum about congressional control over federal jurisdiction that "Congress may derive additional authority in regulating Supreme Court appellate jurisdiction over Fourteenth Amendment cases by virtue of §5 of that Amendment." Memorandum from John Roberts, Special Assistant to the Att'y Gen., Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments 25 (n.d.), available at http://www.archives.gov/news/john- roberts/accession-60-89-0172/006-Box5-Folder1522.pdf [hereinafter Roberts, Memorandum] (emphasis added).
319. Redish, supra note 29, at 907-08; Rice, supra note 182, at 975 ("[T]he exceptions clause is clear, unambiguous, and unqualified.").
320. See Martin H. Redish & Curtis E. Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical View and New Synthesis, 124 U. PA. L. REV. 45, 72 (1975) ("[T]he language and history of article III are so clear that any alteration, even to accomplish the framers' purposes, must come by amendment and not by interpretation in light of 'changing circumstances.'"). During a congressional debate on the issue, Senator Sam Ervin noted, "I don't believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress."
321. Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 90th Cong. 22 (1968) (statement of Sen. Ervin).
322. For an international approach, see Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in RESPONDING TO IMPERFECTION, supra note 51, at 275, 275 ("The procedure for constitutional modification best adapted to Eastern Europe today sets relatively lax conditions for amendment, keeps unamendable provisions to a minimal core of basic rights and institutions, and usually allows the process to be monopolized by parliament, without any obligatory recourse to popular referenda.").
323. Lutz, supra note 51, at 247.
324. Id. at 248.
325. See Joseph R. Long, Tinkering with the Constitution, 24 YALE L.J. 573, 580 (1915) ("Not only are [state constitutions] subject to constant change, but they have long since ceased to be constitutions in a true sense. . . . No one now entertains any particular respect for a state constitution. It has little more dignity than an ordinary act of the legislature."); Tribe, supra note 18, at 442 n.42
326. ("The cluttered and rapidly changing contents of state constitutions may partially explain why even the most enduring and fundamental provisions of these documents rarely command the respect routinely paid to federal constitutional guarantees." (citing Developments in the Law - The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1353-56 (1982))).
327. U.S. CONST. amends. I-X pmbl.
328. See CITIZENS FOR THE CONSTITUTION, supra note 153, at 21-22 (arguing that supporters of amendments should attempt "to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles").
329. See, e.g., U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.
330. In a 1963 Yale Law Journal piece, Charles Black excoriated a thenpending amendment which would have directly altered Article V, replacing its current text with new language essentially eliminating Congress's role in the amendment process. Black, The Proposed Amendment of Article V, supra note 52;
331. Black, A Letter to a Congressman, supra note 52. The proposed amendment soon died.
332. See supra notes 100-01 and accompanying text.
333. KYVIG, supra note 84, at 154-55.
334. U.S. CONST. amends. XIII, XV, XIX.
335. See, e.g., id. amends. XIV, XV, XVIII, XIX, XXIII, XXIV, XXVI.
336. Id. amend. XIV, § 5 ("The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.").
337. See H. Jefferson Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. REV. 949, 976 (1993) ("For Congress at least, the legislative role in proposing constitutional amendments often was seen as a special subset of the general legislative duty to interpret the Constitution.").
338. The Twenty-first Amendment, ending Prohibition, was ratified by state conventions, but it was proposed by Congress. See Everett S. Brown, The Ratification of the Twenty-First Amendment, 29 AM. POL. SCI. REV. 1005, 1005-17 (1935).
339. See Amar, supra note 133.
340. Akhil Reed Amar, The Fifty-Seventh Cleveland-Marshall Lecture: "The Bill of Rights and Our Posterity," 42 CLEV. ST. L. REV. 573, 575 (1994) ("Though proposed by the Federalist Madison, the original Bill of Rights reflects its Anti-Federalist parentage as well.");
341. William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 843 n.308 (1995) ("The movement to secure a bill of rights came from Anti-federalists who wanted to limit the national government's power.");
342. David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1705 (1991) ("The purpose of the Bill of Rights was to incorporate these Anti-Federalist protections into the predominantly Federalist document.").
343. U.S. CONST. amend. XI (limiting federal jurisdiction in cases where states are parties).
344. See Mark E. Brandon, The "Original" Thirteenth Amendment and the Limits to Formal Constitutional Change, in RESPONDING TO IMPERFECTION, supra note 51, at 215, 216-20.
345. Id. at 219.
346. Following its rejection of Roosevelt's court-packing plan, the Senate Committee on the Judiciary declared, Let us now set a salutatory precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution. S. REP. NO. 711, 75th Cong., 1st Sess. 27 (1937).
347. 128 CONG. REC. 2242 (statement of Sen. Goldwater) (expanding on his "concern about proposals that would interfere with Federal court independence").
348. The one counterexample I have found is a proposal, supported by former Justice Owen Roberts, to excise the Exceptions Clause entirely. Owen J. Roberts, Now Is the Time: Fortifying the Supreme Court's Independence, 35 A.B.A. J. 1 (1949). The year after Hart's influential article was published, Senator Butler proposed just such an amendment, a revision he claimed was necessary to protect the Court from congressional interference. See S.J. Res. 44, 83d Cong. (1954); 99 CONG. REC. 1106-07 (1954) (statement of Sen. Butler); see also S. REP. NO. 83-1091, at 2 (1954) ("The purpose of this joint resolution . . . is to fortify the independence of the judiciary by amendments to the Constitution, thereby forestalling efforts by any future President or Congress seeking to nullify or impair the power of the judicial branch of government."). Although the Senate passed the bill, and the American Bar Association supported it, the House tabled the initiative. Roberts, Memorandum, supra note 269, at 21.
349. Illustrating the political volatility of the constitutional issues described here, Senator Butler also spearheaded an effort three years later to strip the Court's power over congressional attempts to target "subversive activities." Helen Norton, Reshaping Federal Jurisdiction: Congress's Latest Challenge to Judicial Review, 41 WAKE FOREST L. REV. 1003, 1042 (2006) (internal quotation marks omitted).
350. Ackerman, The Living Constitution, supra note 79, at 1741.