Avoiding the Requirements of Article V

RJLipkin at aol.com RJLipkin at aol.com
Wed Aug 3 04:58:36 PDT 2005

Suppose Congress passes a  law which is then challenged in the courts. 
Ultimately, the Supreme Court  strikes the law down.  Congress then announces that 
it intends to  reenact the law and provides a lengthy institutional argument 
stating that  despite the interpretive question of whether the law is 
incompatible with the  Constitution properly understood, the Court should refrain from 
striking  down (or even hearing) the reenacted law. Let's further assume that 
from some  Archimedean perspective the law violates the Constitution. Does 
anything  else--beyond entrenched institutional interests--prevent Congress and 
the Court  from colluding in this manner, especially in the light, let's 
suppose, of a  mobilized citizenry that wants the institutional responsibility for 
interpreting  the Constitution to rest clearly in Congress?
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
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