A Pitfall of Constitutional Analysis
Orin Kerr’s comment to my post from earlier today brings to mind this quote from Walter Bagehot:
“There is a great difficulty in the way of a writer who attempts to sketch a living Constitution–a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and perplexed; what he sees is changing daily.”
Puzzled and perplexed indeed.