Legal Commentary

A Thought Experiment on Constitution 2.0

By Orin Kerr

Here?s a thought experiment. Imagine widespread public opinion in the United States demanded a new Constitution to reflect current public opinion. Specifically, let?s imagine that this happened at a time when the inevitable pendulum swing of public opinion happened to be in a liberal direction. The state conventions met and ratified a new constitution ? call it ?Constitution 2.0? ? that had some vague terms but was designed to enshrine what we now think of as liberal/progressive political views. Now imagine twenty more years have passed and the pendulum swings back, and we enter into a time when American politics shifts to a more conservative direction. Here?s the thought experiment: What would liberal and conservative constitutional scholars say at the time about how to interpret Constitution 2.0? Which side would be originalists? And what would the non-originalist theories look like?

Full post as published by The Volokh Conspiracy on February 04, 2010 (boomark / email).