Plus Ça Change . . . or If Hard Cases Make Bad Law, What Do Bad Cases Make?

Abstract

This article is part of a symposium on constitutional law, the theme of which is to explore real constitutional issues deriving from specific cases within a fictional exercise. These cases, all taken from the historical record, are described as they were litigated but with imaginary elements (such as changes in fact or outcome) designed to explore the constitutional ramifications of an altered history. Thus, each altered history represents "a road not taken" in legal jurisprudence, and in the manner of chaos theory, suggests how constitutional law today (if not reality itself) might appear once specific details of the historical record are changed or expunged.