Article

At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded as erroneous, even illegitimate, in favor of new principles and frameworks. 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. These radical, dizzying changes often trigger a sense of “constitutional vertigo,” particularly in those wedded to the old order. Our goal is to provide a conceptual map and to describe how and why radical constitutional change occurs and the vertigo that it precipitates. First, we ask whether theories of interpretation trigger radical change, or whether desires for fundamental change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” (sometimes authorizing or leading to radical change driven by the president or Congress) and the less familiar top-down approaches, where legal elites push for and then impose a new constitutional regime.

But something is happening
And ya’ don’t know what it is
Do you, Mister Jones?

• – Bob Dylan, “Ballad of a Thin Man”¹ 1.Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965).Show More

“What feels different at this moment is the ambition and the velocity, how fast and aggressively [constitutional change is] happening . . . .”

• – Barry Friedman² 2.Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html.Show More

“I couldn’t stand up in front of the class and pretend the students should take the [Roberts C]ourt seriously in terms of legal analysis.”

• – Larry Kramer³ 3.Id.Show More

Introduction

Heads have spun before, and heads are spinning now.

Heads spun during the New Deal, with titanic initiatives from Franklin Delano Roosevelt and his New Deal and, eventually, dramatic shifts from the Supreme Court. Heads spun during the heyday of the Warren Court, and Lyndon Baines Johnson’s Great Society left many woozy.

Nothing is exactly like anything else, of course, and things that seem alike might be very different—radically different, so to speak. We write in 2025. For many, the Roberts Court’s jurisprudential shifts are revolutionary in their scope, magnitude, and pace. Or consider the flurry of executive orders in the early days of the second term of President Donald Trump. Many people think that the United States is in a full-blown “constitutional crisis,” stemming from what they see as the executive branch’s attempts to topple settled understandings—for example, to reconceptualize birthright citizenship, to reject the independence of independent agencies and thus to overturn Humphrey’s Executor v. United States, to revive a long-dormant Impoundment Power, and to punish law firms and universities thought to be associated with certain causes and points of view.⁴ 4.See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html.Show More One powerful adviser to President Trump, now the Director of the Office of Management and Budget, has exhorted the Right to become “radical constitutionalists” and “throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years.”⁵ 5.Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G].Show More

Our goal is to step back from particular rulings, orders, and events and assess the phenomenon of radical constitutional change writ large. Like that powerful aide to President Trump, we too are interested in radical constitutionalism. But our focus is not on the Roberts Court or President Trump, and we do not have much to say about them here, except to link them with prior developments and to emphasize what is obvious, which is that whether one (or both) are instigators of radical constitutional change will become much more apparent in the years to come.

Our topic is a general phenomenon: on occasion, the scope, magnitude, and pace of constitutional shifts are so significant that contemporaries feel that the foundations are shaking, with much of the past—its theoretical underpinnings, its practices, and its doctrines—abruptly delegitimated. We describe the burial of the past and the advent of a new regime as “radical constitutional change”⁶ 6.We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change.Show More or a “constitutional paradigm shift.” Such transformations are the source of constitutional vertigo, a dizzying sense that the old order is crashing down.

There is no doubt that constitutional law periodically experiences paradigm shifts.⁷ 7. See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does.Show More As we understand it, a paradigm is a defining approach or framework, not an isolated ruling or action. Considered in isolation, a modest modification of some doctrine or practice does not produce a sense of vertigo. Tinkering is not radical. And yet, a single decision, or a framework that makes it possible, might rest on a widely held paradigm, and the repudiation of that decision or framework might reflect a nascent, or a newly regnant, constitutional paradigm.⁸ 8.Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”).Show More

Years ago, a unique form of radical constitutional change received considerable attention. Much was written about “constitutional moments,”⁹ 9.See generally 2 Bruce Ackerman, We the People: Transformations (1998).Show More understood as large-scale political and legal rethinking of constitutional commitments, culminating in legitimate constitutional transformation. The Founding, the Civil War, and the New Deal have been described as constitutional moments.¹⁰ 10.See id. at 11–12.Show More According to Bruce Ackerman, these were legitimate transformations because they reflected popular reformation of the Constitution.¹¹ 11.See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”).Show More More recently, David Strauss has highlighted many constitutional changes, both large and small, that arose outside of Article V.¹² 12.See David A. Strauss, The Living Constitution 115–39 (2010).Show More Strauss urges that ours is a common law constitution whose meaning is determined, and altered, through case-by-case judgments. Most of the shifts he describes are not significant enough to count as constitutional moments, but many are by no means incremental and could be said to be part of a larger constitutional transformation.

It is difficult to specify necessary and sufficient conditions for constitutional moments.¹³ 13.For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013).Show More There is debate about how stringent such tests should be.¹⁴ 14.Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics).Show More In any case, most large-scale shifts lack the procedural rigor and popular support that some demand for legitimate transformation. We analyze the phenomenon of constitutional change without regard to whether the changes are legitimate, which makes our project broader than Ackerman’s. Further, our account differs from Strauss’s. While he focuses on how case-by-case judgments change constitutional law over time, we (mostly) widen the lens and consider why and how radical constitutional change occurs, the vertigo it causes, and the crucial role of top-down, elite-driven change in constitutional law.

Jack Balkin’s treatment of “off-the-wall” and “on-the-wall” constitutional claims describes how it is that certain arguments that were once seen as outlandish come to be taken seriously by some and, eventually, by many.¹⁵ 15.See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83(2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach. Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001).Show More We have learned a great deal from Balkin’s important work, and portions of our discussion borrow from and build on his insights. Our treatment touches upon additional matters, including the relationship between constitutional theories and change, the vertiginous consequences of paradigm shifts, and top-down, not just bottom-up, theories of constitutional change. Other differences emerge, though we refrain from identifying all relevant contrasts.

In this Article, we offer a conceptual map and discuss how constitutional arguments move from the margin to the mainstream and thus induce a sense of vertigo. We make five claims:

1. Constitutional understandings can be arrayed along a continuum. In the center is the mainstream of thought. Beyond the mainstream are claims that can be aligned along the continuum from extreme to outlandish to unthinkable. A constitutional argument can move between these categories, shifting from the outlandish to the mainstream or from the mainstream to the unthinkable. Of course, some unthinkable claims are attractive to the left, and others are attractive to the right. (We offer examples.)
2. Theories of constitutional interpretation do not much constrain radical constitutional change, either because most theories are flexible enough to authorize such change, or (in our view, more interestingly) because those seeking radical change tend to endorse a theory that mandates or permits it.¹⁶ 16.See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980).Show More Indeed, some embrace a constitutional theory precisely because it mandates or permits the radical change they desire. This is the reason, or at least a reason, that some constitutional theories come to be seen as intensely appealing, even if they seemed weird, outlandish, or radical when they were initially proposed. This is also, we think, a significant part of what constitutional theorizing in the academy and elsewhere is about, at least implicitly.
3. Radical constitutional change is often a product of bottom-up influences, as when ordinary citizens insist on such change and institutions respond (including with a theory of interpretation that legitimates such change). But constitutional change also reflects top-down influences, as when legal elites (within the academy, the bar, and the federal government¹⁷ 17.More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well.Show More) articulate a new theory or argue for new outcomes and convince other elites. The role of legal elites in driving constitutional change has received far too little attention. In fact, without the backing of at least some legal elites, no constitutional change at the federal level is possible because, as we explain later, elites enjoy a monopoly over all the instruments of change. The undoubted divisions among elites do not diminish this monopoly. Furthermore, elites gatekeep constitutional change, even as some significant elites (legislators and presidents) are subject to an electoral check. Sometimes the public merely authorizes radical constitutional change, and national institutions (presidents, Congress, courts) take the lead.
4. Radical constitutional change produces a sense of vertigo among those educated in, or committed to, the displaced regime. Often, they feel disoriented, even gaslighted. This vertigo occurs because old theories are discarded, and new ones take their place. It occurs because old narratives, widely accepted for decades, are repudiated in favor of new narratives, perhaps understanding U.S. history in novel and different ways. It occurs because some canonical cases lose that status, and new cases, or long-neglected cases, become iconic and part of the new canon.¹⁸ 18.We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B.Show More It occurs because canonical cases, or long-neglected cases, become understood in radically new and different ways.
5. Constitutional law is highly contingent—far more so than those immersed in a particular period tend to think. Contemporary lawyers, law professors, and judges often find it difficult to grasp the central methods at work in constitutional law in (say) 1890, 1920, and 1950 because those methods are so far from their own. People immersed in a particular set of understandings—and used to seeing contemporary Justices as larger than life, even giants (perhaps heroes, perhaps villains)—tend to treat their practices and conceptions as somewhat timeless and fixed, rather than as one effort to see through a glass darkly. That is one reason that they experience a sense of vertigo when what seemed timeless is thrown into some kind of garbage can.

Part I lays out a continuum of constitutional claims. We explore change in all its forms—the rejection of established doctrine and practices, the radical changes in theories, and the movement of claims once seen as extreme and outlandish to being taken as reasonable, mainstream, and even correct. When that movement occurs, some people experience a sense of triumph, as if they have won a war, while others have a sense of defeat, as if their world has been lost.

In Part II, we consider the complicated relationship between radical constitutional change and theories of constitutional interpretation.¹⁹ 19.Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century.Show More We discuss whether constitutional theories are accelerants or retardants to radical change. We also discuss the possibility that some people modify or create new constitutional theories to legitimate or foster radical constitutional change. As we will see, some carts lead some horses.

Part III focuses on the phenomenon of constitutional vertigo. Some regard radical change, when it occurs, as a byproduct of naked power.²⁰ 20.For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962).Show More To them, a pack of yahoos, or extremists, or authoritarians discarded the old regime, with judges and haven’t-got-a-clue law professors both following political winds and doing politics.²¹ 21.See the discussion of Burke, infra Section II.B.Show More They hijacked the Constitution. The inmates seem to be running the asylum. “This is not law; this is not our Constitution,” the critics will proclaim.²² 22.See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66.Show More The skeptics and the proponents live in different epistemic communities; what they think, and what they know, reflects their parochial community and offers (if it is in the ascendancy) a sense of timelessness.²³ 23.The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers).Show More

But the communities may eventually find common ground, for once the new order is widely accepted, much from the bygone era will seem jarring, even illegitimate, perhaps part of the “anticanon.”²⁴ 24.See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”).Show More Long after a new regime takes hold, a lawyer might find past discourse baffling: “How was any of this plausible, much less the law?”

Consider some wisdom from the physicist Max Planck: “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”²⁵ 25.Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950).Show More Science, it is sometimes said, advances one funeral at a time, and there is scientific evidence that this is quite true.²⁶ 26.Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive.Show More The same is often true, we suggest, in law. But Planck’s famous statement is too stark. Well before the death of the opponents of a new order, the handwriting may be on the wall, and hence the widespread sense of vertigo. Something is happening here, but the defenders of the old order may not know what it is. Sometimes, the guardians of the old order die twice, as it were—once when their theory is unceremoniously (or ceremoniously) discarded, and once when they pass.

We discuss the drivers of radical change in Part IV, focusing on elites. There is a rich literature about social movements focused on constitutional change²⁷ 27.An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here.Show More—groups that seek to shift the Overton Window and alter constitutional doctrine.²⁸ 28.Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement).Show More We expand the lens from bottom-up catalysts to encompass the paradigm shifts that originate from the top. Officials, scholars, and lawyers have their constitutional theories and are not merely reacting to bottom-up pressures. Top-down shifts include the textualist turn,²⁹ 29.See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”).Show More the swing toward the unitary executive,³⁰ 30.See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory).Show More and the push for a constitutional right to welfare.³¹ 31.See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all).Show More In these cases, elites sought to alter the law through argumentation and advocacy.³² 32.A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).Show More Members of the public might not know or care much about top-down shifts; they might give a permission slip. Further, we demonstrate that elite buy-in is necessary for any form of federal constitutional change, radical or otherwise.

Part V considers two hypotheticals that may border on science fiction: one involving abortion and the other the Senate. Some pro-lifers believe that the Constitution forbids abortion.³³ 33.See infra notes 295–96.Show More These advocates hope to mainstream their view and convince officials (executive, legislative, and judicial) to adopt it. Claiming that the Senate is unconstitutional seems unthinkable, perhaps bonkers. Yet under not unimaginable (though hardly likely) circumstances, the argument could be mainstreamed. Our point is not to convince you that either claim will become part of the mainstream, much less established doctrine, but rather that certain forms of radical change will seem exceedingly unlikely, if not unthinkable, until they belatedly occur. For those who find our claims here to be implausible, consider the effort, in 2025, to reconceive birthright citizenship, an effort that might not have even been imaginable just ten years before.³⁴ 34.Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025).Show More

A few words about the contours of our project are necessary. We do not address whether radical changes are legitimate or illegitimate, misguided or long overdue. Ours is a descriptive project. Further, we ignore Article V. We seek to describe how radical constitutional change occurs on the ground. From that perspective, Article V has been neither necessary nor sufficient for radical constitutional change. Moreover, nothing we say should be read as endorsing or rejecting any particular constitutional theory. Whether one is a Dworkinian,³⁵ 35.See Ronald Dworkin, Law’s Empire, at vii (1986).Show More a believer in the Compact Theory,³⁶ 36.See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855).Show More an originalist, or a fan of representation reinforcement,³⁷ 37.See Ely, supra note 16, at 181.Show More everyone can profit from pondering radical constitutional change by temporarily sidelining their preferred theory of interpretation.³⁸ 38.There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change.Show More

We believe that (almost) everyone can recognize the sweeping changes right before our eyes.³⁹ 39.For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 2–4 (2013). Solum’s account is broadly compatible with ours.Show More The Roberts Court may be (is?) the new Warren Court.⁴⁰ 40.Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply. But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones. To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.(Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more.Show More And, we have seen, prominent members of the Trump Administration seem bent on radical change.⁴¹ 41.See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”).Show More If vertiginous constitutional change is afoot,⁴² 42.Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so.Show More it is a particularly apt moment for theorizing about constitutional paradigm shifts.

1.  Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965). ↑
2.  Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html. ↑
3.  Id. ↑
4.  See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html. ↑
5.  Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G]. ↑
6.  We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change. ↑
7.  See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does. ↑
8.  Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”). ↑
9.  See generally 2 Bruce Ackerman, We the People: Transformations (1998). ↑
10.  See id. at 11–12. ↑
11.  See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”). ↑
12.  See David A. Strauss, The Living Constitution 115–39 (2010). ↑
13.  For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013). ↑
14.  Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics). ↑
15.  See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83 (2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach.

    Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001). ↑

16.  See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980). ↑
17.  More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well. ↑
18.  We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B. ↑
19.  Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century. ↑
20.  For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962). ↑
21.  See the discussion of Burke, infra Section II.B. ↑
22.  See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66. ↑
23.  The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers). ↑
24.  See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”). ↑
25.  Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950). ↑
26.  Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive. ↑
27.  An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here. ↑
28.  Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement). ↑
29.  See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”). ↑
30.  See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory). ↑
31.  See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all). ↑
32.  A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964). ↑
33.  See infra notes 295–96. ↑
34.  Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025). ↑
35.  See Ronald Dworkin, Law’s Empire, at vii (1986). ↑
36.  See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855). ↑
37.  See Ely
    

    ,

    supra note 16, at 181. ↑

38.  There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change. ↑
39.  For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev.
    

    1

    , 2–4 (2013). Solum’s account is broadly compatible with ours. ↑

40.  Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply.But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones.

    To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.

    (Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more. ↑

41.  See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”). ↑

42.  Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so. ↑