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99 Ind. L.J. Supp. 1 (2023)

handle is hein.journals/spplmntinlj99 and id is 1 raw text is: The Supreme Court, Constitutional Development, and Evolution Theory: A Critique CHARLES M. LAMB* & JACOB R. NEIHEISEL** This article spotlights how University of Chicago Professor David Strauss's publications present the early stages of a descriptive theory of constitutional interpretation and evolution, and how his theoretical contributions might be strengthened. Specifically highlighted here are ten milestone Supreme Court rulings with the objective of determining which were evolutionary as opposed to modernizing, based on Strauss's theoretical formulations. On various occasions these cases demonstrate how Strauss's theory can be not only refined but broadened. The concluding section assesses Strauss's contribution to the study of American constitutional development and how it might be revamped. There we argue that despite Strauss's influence on the study of the Supreme Court and constitutional evolution, he relies on concepts that must be clarified and honed for future research, and he must make his theory more comprehensive. At a minimum, Strauss should extend his descriptive theory to three types of Supreme Court decisions: those that are retrogressive, revolutionary, and confirming status quo in nature. Finally, Strauss should attempt the most difficult task of all: developing a causal theory of constitutional change. * Research Professor, Department of Political Science, University at Buffalo, State University of New York ** Associate Professor, Department of Political Science, University at Buffalo, State University of New York

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