Saikrishna Bangalore Prakash and Cass R. Sunstein have published Radical Constitutional Change in the Virginia Law Review:
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.
--Dan Ernst
