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72 N.Y.U. L. Rev. 470 (1997)


The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the holiday months between November and January, so they thought that moving the dates would eliminate future lame-duck Congresses. Since 1933, though, Congress has met during the lame-duck period with increasing frequency to enact significant legislation.

Such a result would not occur if the courts interpreted the twentieth amendment according to its purpose instead of its text. That is the approach that the Supreme Court has taken with respect to the eleventh amendment, which now provides a broad basis for state sovereign immunity. I argue, though, that constitutional provisions should be interpreted consisted with their texts, and that more ambitious purposes such as that supporting the twentieth amendment should not be enforced by the courts in the face of the Constitution's more narrow express language.


Reprinted with permission of New York University Law Review.



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