Radical Constitutional Change

51 Pages Posted: 20 May 2024 Last revised: 28 Jun 2024

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: May 20, 2024

Abstract

At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles, and widely accepted approaches, are discarded as erroneous, even illegitimate, in favor of a new set of principles and approaches. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution – its core commitments and underlying narratives – and those transformations change our practices. Our goal here is to provide a conceptual map of radical constitutional change. We seek to describe how and why such change occurs. First, we ask whether theories of interpretation trigger radical change or whether desires for radical change impel people to generate new (or modify old) theories of interpretation.  Second, we explore why so many are baffled or outraged by constitutional paradigm shifts. Third, we explore the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” and the less-familiar top-down approaches, where legal elites foment and impose a new constitutional regime.  We end with a brief discussion of Edmund Burke and conclude that Burkeanism has a complex and ambivalent relationship with radical constitutional change.

Keywords: originalism, interpretation, radical constitutional change, paradigm shift, mainstream, extreme, Roberts Court, Burkeanism

JEL Classification: D00, D01, D90, D91, D9, K14

Suggested Citation

Prakash, Saikrishna and Sunstein, Cass R., Radical Constitutional Change (May 20, 2024). Virginia Public Law and Legal Theory Research Paper No. 2024-43, Available at SSRN: https://ssrn.com/abstract=4834688 or http://dx.doi.org/10.2139/ssrn.4834688

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Cass R. Sunstein

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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