Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway)

by Orin Kerr

The Volokh Conspiracy
August 16, 2010

In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1. In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero. Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2. A few decades later, American society has embraced A2 as a universal principle. A1 is not just unacceptable but neanderthal. In contrast, B2 has become quite controversial, and public opinion is now divided between B1 and B2.

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