A Thought Experiment on Constitution 2.0

Here’s a thought experiment. Imagine widespread public opinion in the United States demanded a new Constitution to reflect current public opinion. Specifically, let’s imagine that this happened at a time when the inevitable pendulum swing of public opinion happened to be in a liberal direction. The state conventions met and ratified a new constitution — call it “Constitution 2.0” — that had some vague terms but was designed to enshrine what we now think of as liberal/progressive political views. Now imagine twenty more years have passed and the pendulum swings back, and we enter into a time when American politics shifts to a more conservative direction. Here’s the thought experiment: What would liberal and conservative constitutional scholars say at the time about how to interpret Constitution 2.0? Which side would be originalists? And what would the non-originalist theories look like?

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