The Assault on the First Amendment: Public Choice and Political Correctness

Annotation
It is possible to radically change the meaning of the Constitution without changing one word of the document. This has happened, for example, with respect to the Takings Clause of the Fifth Amendment (Epstein 1985, Rowley 1992) and the Contracts Clause. The words in both of these clauses remain unchanged in the Constitution, but both have greatly reduced force today relative to, say, the pre-New Deal world. Moreover, the Supreme Court in recent years has established interpretations of the Constitution that agree with the mainstream of American constitutional jurisprudence (Farber and Frickey 1991: chap. 3; Horwitz 1992). As a result, most constitutional scholars do not point out that the Constitution has been radically reinterpreted.