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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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