Minnesota Law Review

Amending the Exceptions Clause

Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these two forms of constitutional politicking interact. As legislators increasingly propose and pass jurisdiction-stripping legislation and pursue politically charged constitutional amendments, these constitutional processes have begun to step off of the pages of law reviews and into the halls of Congress. The looming collision between them makes it all the more essential that each be understood. This Article advances that understanding by exploring the connections between the amendment process and the Exceptions Clause, illuminating the meaning, impact, and limits of each.

In order to properly identify constraints on the Exceptions Clause, courts and scholars must first have a robust understanding of how constitutional amendments impact and alter provisions of the existing Constitution. Part I of this Article thus begins by describing the impact of constitutional amendment, arguing that amendments—very few of which refer to the specific provisions of the Constitution they are meant to change—are not simply additions. They can (and generally do) alter the meaning of the original Constitution, including the Exceptions Clause. Building from the text and history of the Constitution and the amendments themselves, this Part argues that properly interpreting amendments requires courts to identify what, if anything, an amendment “amends.” Part I concludes by suggesting how courts and scholars can better accomplish that interpretive task.

The second Part of the Article applies this amendment theory to the Exceptions Clause, analyzing the degree to which subsequent amendments have implicitly altered the power it gives Congress over federal jurisdiction. Although scholars have long sensed the existence of internal and external “constraints” on congressional power under the Clause, none have systematically incorporated a robust theory of constitutional amendment to explain these limitations. By doing so, this Article thickens and supports the external constraints theory of Congress’s Exceptions Clause power, and may help shed light on two of legal academia’s central quests: clarifying the meaning of constitutional amendment and finding limits on the Exceptions Clause.

:: View PDF

News & Events

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here.

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here.

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here.

  • Vol. 97 Lead Piece Cited on Slate

    A recent Slate article on the Supreme Court’s decision not to hear the “Moldy Washing Machine” cases, or overturn class certification of those cases in some circuits, cites to the Volume 97 Lead Piece, How Business Fares in the Supreme Court. You can read the article here.

Newsletter

cforms contact form by delicious:days