Document Type

Working Paper

Publication Date



constitutional theory


Author's Comment: This is very much a work in progress in which too much progress has been made (the awful length) and not enough progress has been made (lots is still underdeveloped). As with a great many works that suffer from these deficiencies, I apologize for the incomplete footnotes, the numerous typos (I am still at the stage where every time I identify one typo, I create two more in the fixing process), and horrible repetition in part because I still have not figured out where everything goes. I nevertheless hope that the pages below makes some sense and are not too painful to read. I would particularly appreciate advice on whether this is a paper, whether I should just write the book (presently entitled Out of Phase: Constitutional Values, Constitutional Politics and the Fourteenth Amendment) or discover where in Charlottesville I am allowed to build a large fire.

For those interested in the appropriate mercy rule, you could probably just read the first 14 pages, or pages 30-98.


Constitutional Law