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Whenever the United States Supreme Court announces a constitutional decision that rejects a previously established interpretation, the critics and scholars draw lines, choose sides, and attempt to reconcile or show how the decision cannot be reconciled with the previous interpretation. Where the line is drawn or which side is chosen hinges upon the constitutional theory embraced and advocated by the critic. Those critics who adhere to a strict interpretational theory often attack the more recent decision as being unfaithful to the framers' intent or the strict letter of the written constitution. Other critics, who do not agree that framers' intent is or should be controlling, may criticize the decision as not going far enough or as going too far. Some critics attempt to justify the decision as being responsive both to historical antecedents and to contemporary social and moral attitudes, as well as to a higher moral standard. Regardless of the approach taken, each critic tries to square the decision with his or her theoretical preference. Rather than advocating a particular constitutional theory as the "right one" or directly entering the foray of attack or justification, this article has a. more limited purpose. It will identify a specific instance of shift in constitutional interpretation as it concerns obscenity and the first amendment and will attempt to explain and evaluate that shift in terms of the concept-conceptions theory of constitutional interpretation.


Harriet L. Turney is an Instructor of Law, University of Toledo College of Law. B.A., Kent State University, 1973; M.A., Kent State University, 1976; J.D., University of Dayton School of Law, 1979.

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