“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?
The subject of this Article, in general, is the relationship between “We the People,” who “ordain[ed] and establish[ed]” the Constitution, and we the “Posterity” to whom the “Blessings of Liberty” were to be secured. The rules for amending the Constitution, and any limitation on amendment emplaced by those rules, are central to relationships between generations of the American citizenry. The more particular topic of this Article is the special case of unamendable provisions as ties that bind and the gaps that separate generations of We the People. Such permanent, unalterable provisions are the ties that bind generations inflexibly to one another; yet such provisions create the widest of gaps between the sovereignties of those same generations.
George Mader, Generation Gaps and Ties That Bind: Constitutional Commitments and the Framers' Bequest of Unamendable Provisions, 60 How. L.J. 483 (2017).