October 2004, Volume 90, Issue 6|
Time, Change, and the Constitution
90 Va. L. Rev. 1601 (2004)
This Essay seeks to apply some standard tools of constitutional theory to Brown v. Board of Education, and the history of the Reconstruction Amendments more generally, and thereby derive four principles of interest to Americans who are considering changing their Constitution. First, expect that judicial fidelity to framer-made norms will depend on (1) the conformity of the norm with the judge's own view, (2) the felt importance of the issue, and (3) the clarity of the norm—the amount of wiggle room it leaves the judge. Second, framers are well-advised to put more faith in structural provisions like the two-Senators rule than in substantive provisions like the First Amendment. Third, rules beat standards. Finally, the success of entrenchment depends on the initial reasons for adopting constitutional provisions. This Essay applies these principles to the Federal Marriage Amendment and an amendment that would revise the continuity-of-government rules.
Click on an icon below to access the full text of this article*
Westlaw | LexisNexis | HeinOnline | SSRN | Bloomberg
* These are third-party content providers; they may require a separate subscription or charge a fee for access.