Abstract

In Home Building & Loan Assn. v. Blaisdell, the Supreme Court upheld the constitutionality of the Minnesota Mortgage Moratorium Act. Under the terms of the Act---one of the many pieces of moratory legislation enacted due to the Great Depression---mortgagors who found themselves unable to make their payments could turn to the state courts for an alteration of their payment schedule. It is clear that if there ever was a state of affairs in which one could justify the imposition of debtor relief, the circumstances in Minnesota during the early 1930s would have filled the bill. By most accounts, the Act was justifiable from a policy perspective. ;Nevertheless, the outcome did not please everyone. The question before the Court was whether the proceedings authorized by the Act violated the contracts clause of the Constitution. Article 1, §10 provides that "No State...pass any...law impairing the Obligation of Contracts." The Act did impair the obligation of mortgage contracts. Furthermore, the Act was exactly the kind of debtor relief legislation that the contracts clause meant to forbid. The basic premise underlying the majority opinion was that a constitutional provision should be interpreted both in the context of the entire Constitution and in the context of the social situation confronting the Court. According to the dissent, the framing of the Constitution fixed the meaning of a provision for all cases arising across time. The two approaches represent two extremes in constitutional interpretation. However, the basic agreement is over how the Constitution should evolve. The basic disagreement concerns the problem of constitutional change. ;In a recent work, Robert Lipkin radically rethinks modern constitutional jurisprudence, challenging the received view of constitutional change. His theory of "constitutional revolutions" implies that conventionalism, coherentism, pragmatism, and naturalism all fall short as the best theory of constitutional change. In addition to offering a critique of Lipkin's theory, the present work conducts an independent investigation the theories Lipkin rejects. Such an investigation will not only help ascertain the legitimacy of Lipkin's theory of constitutional revolutions in particular, but of radical constitutional change in general