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C O U R S E 
Key Constitutional Concepts and Supreme Court Cases
Professor Kermit Roosevelt, III, University of Pennsylvania
C O U R S E   L E C T U R E 
Structural, Backward-Looking, and Forward-Looking Provisions
Notes taken on October 30, 2014 by Edward Tanguay
how do we know what the Constitution means?
the people who wrote it believed many things that we don't believe now
that white men could own black slaves
that the government could deny the vote to free blacks and women
that men should not be allowed to marry other men
so in some ways, our constitutions is different than the framers Constitution
does the fact that our values have changed mean that our understanding of the Constitution should change
or is the meaning fixed for all time?
this is one of the debates in constitutional law
1. originalism
meanings of Constitution shouldn't change
cases must be decided the same way today as they would have been when the Constitution was ratified
if you want to change it, there is an Amendment provision to do that
2. "the living constitution"
constitution changes with the times
cases are decided in a way that makes sense for today
the Constitution is intended to last for a long time and has to grow with our changing society
you have to look how the constitution's values are applied to today's circumstances
the Supreme Court has generally followed this kind of evolutionary theory
states used to:
segregate public schools and buses and railroad cars by race
ban interracial marriage, and prevent women from being lawyers
courts ruled that at various times in history that the Constitution was allowed states to do all these things
but then without a change to the words of the Constitution, the courts said that states could indeed not do these things
almost no one would be happy if the Supreme Court started to decide cases as they would have been decided back in the 18th century when the Constitution was ratified
3. reconciliation
Constitutional meaning does not change over time (Originalist claim)
yet application of rights changes over time (living constitutionalists)
suppose you wanted to make sure that the Senate was respected
the key to respect was dressing well
"While engaged in debate, the Senators shall wear the latest fashions"
so wearing a powdered wig in 2014 would be violating the clause
the clause itself tells you to look to what the people consider to be fashionable at the time
three main types of provisions that you find the Constitution
1. structural provisions
the structure of the government
these meanings don't change
cases comes out the same way today as at ratification
2. backward-looking provisions
look back to something that happened in the past and say: we should never do that again
e.g. banning slavery
e.g. banning the lodging of troops in people's houses
we experienced these things and decided they were bad for the country
3. forward-looking provisions
the meaning of the clause doesn't change
but cases may come out differently based on how society has changed
e.g. states can't segregate their schools
e.g. states can't ban interracial marriage
the constitutional provision being enforced is the Equal Protection Clause
prohibits states from engaging in unfair or oppressive discrimination
the courts say: in deciding what is unfair or oppressive, we are going to look at what people think now and not what they thought hundreds of years ago