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Philadelphia Revisited: Amending the Constitution Outside Article V

By Akhil Reed Amar

Abstract

In the corridors of power of our nation\u27s capital, and in law school classrooms everywhere, debates are raging over basic questions of constitutional theory: Does the Constitution guarantee unenumerated rights? If so, how are these rights to be derived and enforced? Should judges depart from constitutional text, history, and structure to maintain a \u22living\u22 Constitution? With increasing frequency, these debates have converged to frame the following now-standard question: Should we (or did the Framers) rely exclusively on the formal amending process of Article V to update the Constitution, or should we (or did the Framers) also rely on the federal judiciary to act as a kind of continuous constitutional convention, ever evolving new unenumerated individual rights

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1988
OAI identifier: oai:digitalcommons.law.yale.edu:fss_papers-2022
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