This Article concerns the interplay between judicial review and Article V of the Constitution, which sets out the procedures for formally amending the Constitution. 7 According to the text, the Constitution can only be amended if two-thirds of both Houses of Congress and three-fourths of the states agree or two-thirds of the states call for a convention.8 This Article addresses when, if ever, judicial interpretations of the Constitution amount to illegitimate and de facto amendments to the Constitution because they were not implemented through Article V procedures… . The next Part of this Article contends that the Court has improperly amended the Tenth and Eleventh Amendments without going through the required Article V procedures. These sections do not purport to exhaustively review the literature or arguments surrounding the Court’s interpretations of the Tenth and Eleventh Amendments, but rather simply demonstrate how my thesis about proper constitutional change can be used to helpfully analyze Court decisions.
Constitutional Change and The Supreme Court: The Article V Problem,
U. Pa. J. Const. L.
Available at: http://scholarship.law.upenn.edu/jcl/vol16/iss2/5