This chapter provides a preliminary sketch of the Supreme Court of the current era. It describes the distinctive political environment in which the sitting justices were appointed and in which they function. It highlights the role that a conservative legal organization, the Federalist Society, has played in vetting potential nominees and in ensuring that the sitting justices who were appointed by Republican presidents are reliably conservative in their commitments. The chapter also discusses the rise of originalism as a theory of constitutional interpretation and frames issues about the relationship between originalist methodology and substantively conservative values that will be a focus of attention through the remainder of the book. Finally, it gives introductory, capsule biographies of each of the current justices. As later chapters will elaborate, it is impossible to understand the Court’s dynamics without a grasp of how the individual justices, taken one by one, approach their jobs.

This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.

This chapter considers the nature of constitutional “law” in the Supreme Court. In pursuing that inquiry, the chapter begins with the premise that the Constitution is law not because the Founding generation adopted it but because relevant constituencies in the United States today accept it as authoritative. Moreover, because the Constitution does not include all of the rules necessary for its own interpretation, many of the norms that mark the limits of permissible constitutional interpretation, including the doctrine of stare decisis, are similarly grounded in shared understandings and accepted practices among the justices and other officials, not written rules laid down by prior generations. The acceptance-grounded law that applies to the justices is enforceable through extra-judicial mechanisms that could potentially include defiance of Court decisions if they were widely perceived as overstepping the justices’ lawful authority. But we should recognize that the “law” that constrains the justices is different from more ordinary law. In a normative vein, this chapter describes adaptive judicial interpretations of a Constitution that was mostly written in the eighteenth century as a functional necessity. But it presents a more troubled assessment of developments in the current politically charged and divided era.

This chapter traces the arcs of change that are visible in the interpretation of the First Amendment’s Establishment and Free Exercise Clauses. To a rough approximation, the Supreme Courts over which Earl Warren and Warren Burger presided as chief justice (from 1954 to 1969 and 1969 to 1986, respectively) sought to enforce a “wall of separation” between church and state. That wall has crumbled in the decades since. The current Court has embraced the originalist position that historical understandings define the exclusive Establishment Clause limitations on permissible governmental acknowledgment of and support for religion. Among the outstanding questions is whether the Warren Court’s iconic decisions banning prayer in the public schools will survive. The pattern of decisions under the Free Exercise Clause is complex, with current trends reflecting a reversal of positions by judicial conservatives and judicial liberals alike. Justice Scalia epitomized the views of conservatives of his generation in holding that the Free Exercise Clause does not require the government to exempt either religious organizations or individual believers from generally applicable laws that impede religiously motivated practices. More recently, as the parties seeking exceptions have increasingly included conservative Christians, the conservative supermajority has often supported their demands.

This chapter surveys Supreme Court decisions involving the Second Amendment right “to keep and bear arms.” Nowhere is the current Court’s approach more originalist. Before 2008, the Court had never held that the Second Amendment protects a personal right to possess weapons unrelated to service in what the Amendment’s preamble characterizes as the need of “free states” for “a well-regulated militia.” This chapter describes events leading to the Court’s turnaround and analyzes its decisions since then. In applying other constitutional guarantees, the Court frequently asks whether restrictions are “narrowly tailored” to important or “compelling” governmental interests. By contrast, it insists that the permissibility of modern regulations of firearms depends exclusively on whether analogous restrictions were historically tolerated. In response to difficulties that the lower courts encountered in determining whether challenged regulations had historical analogues, the Court recently explained that precise factual similarity matters less than whether a modern restriction is “consistent with the principles that underpin our regulatory tradition.” Applying that test poses formidable challenges. But if the Court’s majority views its prescribed approach to defining Second Amendment rights as successful, it could imaginably extend its exclusive reliance on history and tradition to identify constitutional violations to other areas.

This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

Despite widespread and well-reasoned objections to its methods, originalism has gained widespread prominence as the au courant doctrine of legal interpretation. This chapter offers a rhetorical analysis of originalism’s ethos – namely its communal indwelling rooted in rule of law and American democratic values – to explain its strange persistence as well as provide a critical starting point for developing effective critical interventions in future jurisprudential debates about the merits of originalism as a theory of legal meaning. Drawing from Martin Heidegger’s theorizing of ethos, the chapter reconceptualizes ethos and recovers its full meaning beyond good character and wisdom. The chapter situates this full meaning within the emergence of modern originalism as represented in the work of Professor Raoul Berger and then traces the meaning’s evolution through the work of Justice Antonin Scalia and Professor Larry Solum, who both rely on the ethos of indwelling to overcome originalism’s deficiencies rather than their perceived ethos of personal character and effective reasoning. The chapter demonstrates that it was Berger, Scalia, and Solum’s ability to connect their work to a deep-seated shared sense of communal identity that enabled them to secure a place of pride for originalism in jurisprudential debates.

What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.

This chapter focuses on additional mechanisms for channeling judicial behavior that can be regarded as products of the developments surveyed in the Chapters 4, 5, and 6. One is judicial specialization. The other is the rise of algorithmic-seeming interpretive methodologies, specifically textualism and originalism. The chapter critiques the methods and emphasizes that, despite some proponents’ efforts to portray them otherwise, neither succeeds at eliminating judgment from its central role in judging.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

This chapter advances theoretical reasons to support symmetric interpretation. First, favoring symmetry accords with the Constitution’s character as a comparatively terse, “framework” document focused on establishing democratic procedures rather than definitive policies. Second, an ethic of symmetric interpretation accords with widely accepted features of judicial role-morality. Finally, symmetric interpretation accords with the framers’ own constitutional aspirations and interpretive methods. Multiple widely accepted theoretical considerations in constitutional law thus support preferring symmetric understandings when possible.

This penultimate chapter shows how the story of the constitution is not only told by the written text of a constitution but (even predominantly so) by symbols, images, icons, gestures, behaviour, flags, rituals and so on. The constitutional story is conveyed directly and indirectly in very many (unstudied) ways.

This chapter evaluates whether any accounts of general constitutionalism can reconcile judicial review with popular autonomy. It evaluates three prevalent approaches: the Constitution as a fixed contract among the people (originalism) that includes judicial review; the Constitution as a fluid, dynamic instrument (living constitutionalism); and instrumental institutionalist accounts. Despite their insights and merits, none of these accounts can explain how the power to shape democratic process can be legitimately allocated to a nonaccountable, apolitical actor while fully recognizing the normative weight of democratic self-determination.

Beginning with a look at the January 6 riots at the US Capitol, and concluding with neo-Nazi rallies in support of "white free speech" in Charlottesville, VA, and earlier in Skokie, IL, we discusses how groups are weaponizing free speech to suppress the speech of others.

Constitutional law features prominently in the political culture of the United States, but there exists no sustained and robust tradition of theorising the material constitution of the polity. Most contemporary constitutional theorists remain committed to what Du Bois referred to as ‘constitutional metaphysics’ in his Black Reconstruction. Instead of attending to historically specific and determinate social relations, such theorists emphasise putative ‘original public meanings’ or an accretive ‘living constitution’. Alternative possibilities for constitutional theory may be identified by reappraising the insights and limitations of older analyses of American constitutionalism by Beard, Llewellyn and Hartz. These possibilities are not premised on the fetishisation of constitutional meaning, on fidelity to the framers’ white supremacist and antidemocratic project or on a commitment to the notion that the constitution is perpetually perfectible.

In this chapter (and following the conclusion of the previous one), I refer to the profound difficulties generated by legal interpretation, in general, and constitutional interpretation, in particular. I maintain that, very frequently -and particularly when constitutional values are involved- the words of the law offer some ambiguity or obscurity or vagueness - imprecisions that then must be resolved by the interpreter -typically, by a judge- applying the law to a particular case. The problem is that, unfortunately, interpretative methods-including, originalism, living constitutionalism, textualism, purposivism, strict constructivism- easily take the interpreters to opposite or very different solutions. In the chapter I show how this unfortunate situation strengthens the so-called “democratic objection”, in what relates judicial review; damages the main promises of the “rule of law”(because the “rule of man” rather than the impartial “rule of law” tends to prevail); and in the end favors authoritarianism and “democratic erosion” (thus, when abusive governments, recognizing how much the meaning of the law depends on the will of the interpreter, attempt to gain control over the judicial apparatus).

This chapter examines the contested concept of constitutional identity in the comparative constitutional law literature and situates it in the specific jurisdictional context of Nepal. In particular, the analysis concentrates on the foundational function of constitutions and explores the relationship between constitutionalism, identity politics, and constitutional design. Nepal is an ideal case study for exploring the notion of constitutional identity because it sits uneasily within the traditional taxonomies used in the discipline. For instance, Nepal is the only South Asian country that was never colonised and whose legal system does not operate in English, but in the country’s national language, Nepali. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the embattled historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.