The Constitution's Accommodation of Social Change

Authors

Philip A. Hamburger, University of Connecticut

Abstract

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, in some instances, render the current form of jury trial inappropriate and obsolete.

This article concerns the framers' and ratifiers' anticipation of what they occasionally called changing "circumstances" or "exigencies" - in other words, a wide variety of developments, including some not conventionally designated "social change." For lack of a better label, however, that phrase will here be used to refer to the many types of change the framers and ratifiers considered when creating the Constitution. As a result, this article will treat as "social change" developments that could be more narrowly categorized as economic, political, cultural, or moral. Not only changes that alter the fundamental nature of society but also less substantial alterations and events may be within this broad understanding. Although so expansive a view of "social change" will give little comfort to those accustomed to a more conventional definition, it will at least prevent an artificial exclusion of subjects the framers and ratifiers thought relevant.

Recommended Citation

Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 Mich. L. Rev. 239 (1989).
Available at: https://repository.law.umich.edu/mlr/vol88/iss2/3