8 Pages Posted: 19 Oct 2016 Last revised: 29 Oct 2016
Date Written: October 18, 2016
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.
Keywords: Constitutional Law, Constitutional Interpretation
Suggested Citation: Suggested Citation
Primus, Richard, The Constitutional Constant (October 18, 2016). Cornell Law Review, Forthcoming; U of Michigan Public Law Research Paper No. 524. Available at SSRN: https://ssrn.com/abstract=2854311