Richard Primus (University of Michigan Law School) has posted The Constitutional Constant (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. That correspondence, which abides as the content of constitutional law changes, is what this short essay calls the constitutional constant. And because American values and American ideas about government change over time, the content of constitutional rules must change in order to preserve what is truly constant in the constitutional system: the correspondence between the content of constitutional law and the deepest values of the American people.
This is not an empirical paper--there is no attempt to show that thesis is true, but it Primus has articulated an important speculative hypothesis and crystallized it. Here is passage from the paper that illustrates Primus's approach:
Our collective self-conception—our ethos—changes over time, as do our ideas about what governmental structure would best serve us in light of our ethos and our circumstances. Controversies about structure and ethos are reflected in controversies about constitutional meaning. And when there is broad agreement within the decisionmaking class about an important matter of governmental structure or a salient aspect of the American ethos, that agreement is reflected in the content of constitutional law.
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