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"Philadelphia Revisited: Amending the Constitution Outside Article V," 55 University of Chicago Law Review 1043 (1988)


In the corridors of power of our nation's 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 "living" 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?

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