Amending the Exceptions Clause

By Joseph Blocher. Full text here.

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.