How a Court Becomes Supreme: Defending the Constitution from Unconstitutional Amendments

Richard Albert

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In this Article, I sketch eight strategies the Court could deploy in order to defend American constitutional democracy—and to make itself truly supreme by immunizing its judgments from reversal by constitutional amendment.