Time, Change, and the Constitution

Essay — Volume 90, Issue 6

90 Va. L. Rev. 1601
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This Essay seeks to apply some standard tools of constitutional theory to Brown v. Board of Education, and the history of the Reconstruction Amendments more generally, and thereby derive four principles of interest to Americans who are considering changing their Constitution. First, expect that judicial fidelity to framer-made norms will depend on (1) the conformity of the norm with the judge’s own view, (2) the felt importance of the issue, and (3) the clarity of the norm—the amount of wiggle room it leaves the judge. Second, framers are well-advised to put more faith in structural provisions like the two-Senators rule than in substantive provisions like the First Amendment. Third, rules beat standards. Finally, the success of entrenchment depends on the initial reasons for adopting constitutional provisions. This Essay applies these principles to the Federal Marriage Amendment and an amendment that would revise the continuity-of-government rules.

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  Volume 90 / Issue 6  

What Brown Teaches Us About Constitutional Theory

By Jack M. Balkin
90 Va. L. Rev. 1537

The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation

By Kevin Brown
90 Va. L. Rev. 1579

Time, Change, and the Constitution

By John Harrison
90 Va. L. Rev. 1601

Brown at 50

By Michael J. Klarman
90 Va. L. Rev. 1613