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The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham Law Review 489 (2006) (with Sanford Levinson)

Abstract

Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory of "partisan entrenchment." Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an update of our thoughts, together with some amendments to our initial formulation. By far the most important amendment is to draw out in more detail how the development of constitutional doctrine by courts occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. The forces of democratic politics drive these regime changes, and the major actors are not courts but the political branches. Although courts may initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them through the development of constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions and practices that we call the "National Surveillance State," which, we think, represents the major constitutional development of our era.

Date of Authorship for this Version

2006

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