The American Constitution and the Debate over Originalism (ISBN 0521607795)

Book Description:
This is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. The book presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. By their fidelity to the Constitution, Americans are a textual people in that they live in and through the terms of a fundamental text. On the basis of this central idea, the book presents a new understanding of constitutional interpretation and an innovative account of the democratic legitimacy and binding capacity of the Constitution.

Unimpressed:
Very much unimpressed. While I believe he does a good job in exploring its history, the author's analysis is quite lacking. In it he makes such poor conclusions as: --"originalism may not lead to unanimity." No one arguing the case for originalism has said that the conclusions will be the same. That is the purpose of debating and exploring the history. --"originalists reject the doctrine (of incorporation--the idea that the Bill of Rights is applied to the states through one or more provisions of the Fourteenth Amendment) as inconsistent with original intent." While Raoul Berger shook its foundations that statement is not true of all originalists. A scholar seeking after accuracy would have qualified that statement. Apparently the author is unaware that there are originalists who find in the Constitution sanction for more liberal policies than more liberal adherents of originalism. His thesis basically seems that originalists are originalists because it squares with their conservative policy preferences. However, originalism is not a monolithic position. There are originalists, for example Randy Barnett, who find in the Ninth Amendment protection laws against homosexual sodomy, which would support the Lawrence v. Texas Supreme Court decision.