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In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.

This chapter elaborates on the variety of “constitutional faiths.” It discusses the parallels between Protestant and Catholic approaches to Christian doctrine and “protestant” and “catholic” modes of approaching the U.S. Constitution. It argues that there is double message contained within the analogy of the Constitution to a sacred text or the Supreme Court to a holy institution. The first, emphasizing unity and integration, is the one we most tend to be familiar. The chapter proposes to examine the alternative message, which is the potential of a written constitution to serve as the source of fragmentation and disintegration. The analysis aims not only to present a somewhat different perspective from which to look at the Constitution, but also to attack by implication any confidence of having “the Constitution” as a common symbol guarantees meaningful national political unity.

This chapter considers another, even more controversial topic: whether the Constitution should be read to create “rights,” or impose limits on state authority (as we will see, even the proper characterization is controversial), which are not derivable from specific constitutional text. Put differently, the dispute centers over whether judges are empowered to find/recognize/create constitutional rights, constitutional limits on governmental power, and constitutional principles more generally, which are largely disassociated from specific constitutional text; and if they are so empowered, how judges are to go about this task. The chapter begins with a brief overview of how the Supreme Court has handled this issue over the years, including a summary of its important, recent decisions in areas of nontextual constitutionalism such as same-sex marriage and abortion. It then considers what light a structural approach to the Constitution might shed on these difficult and divisive questions.

This chapter considers the relationship between the Constitution—and the sovereign people ostensibly represented in its terms—and morality. Constitution faith requires the linkage of law and morality even as most twentieth-century jurisprudence has emphasized their analytic separation. All calls for renewed faith in the rule of law and renewal of the constitutional covenant imply that submission to the Constitution will create not only order but also the conditions of a social order worthy of respect. In order to see the logic and desirability of submission to the rule of the Constitution, the assumed linkage between it and morality must be closely examined.

Chapter 3 considered the merits of loyalty oaths in general. It left unexamined an assumption of the debate about requiring such oaths—that they have some genuine content. This chapter examines that assumption: What exactly is one affirming when pledging loyalty to the Constitution or announcing one’s “constitutional faith”? It is possible that the national covenant is without content, or at least is unspecifiable? The chapter includes an intensive examination of one particular case requiring what might be termed as a “meta-analysis” of the Constitution. The subject matter of the case involves the meaning of the “attachment” to the Constitution required in order to become a naturalized citizen of the United States.

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.

The eight long years of the second Bush Administration and the War on Terror that it prosecuted have generated an extraordinary number of complex and divisive questions of constitutional law. Notably, however, most of the constitutional disputes arising out of the War on Terror have not primarily implicated the main topic of this book, the Bill of Rights and the Fourteenth Amendment. Instead, they have tended to relate to topics such as the separation of powers, the scope of and limits on executive power, and the role of international law. This is not to say that the Bill of Rights is completely irrelevant to these disputes; in particular, the detention of enemy combatants clearly implicates the Due Process Clause of the Fifth Amendment, and the National Security Agency's (NSA) program of warrantless wiretapping potentially violates the Search and Seizure Clause of the Fourth Amendment. On the whole, however, the role of the Bill of Rights has certainly been peripheral in recent disputes, and even when clearly implicated, their application to these disputes has been far from clear. Why that is so, but why the insights we have developed up to this point nonetheless shed important light on the constitutionality of certain aspects of the War on Terror, is the subject of this chapter.

This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.

This chapter is about ultimate standards of law in the United States. It attempts to discern the jurisprudential implications of widespread practices involving the Constitution and other standards of law. The chapter proceeds at three levels: (1) application to the United States of Hart's concepts regarding the rule of recognition; (2) enrichment of those concepts in light of the United State#x0027;s law and legal institutions; and (3) evaluation of some strengths and weaknesses of this general approach to how ultimate legal standards are discerned, and a sketch of a fuller and more adequate account. The main body of the chapter primarily addresses the first level, though it involves comments of obvious relevance for the second level and lays the groundwork for discussion at the third. The end of the chapter draws together conclusions about how Hart's theory requires amplification, and treats the relevant disagreements between Hart and Dworkin in a systematic way.

This chapter begins with a discussion of the focus of the book, which is the provisions and amendments of the Constitution that are generally understood to grant the most important individual rights: the First Amendment, which is said to create the rights of free speech, freedom of assembly, free exercise of religion, and separation of church and state (i.e., no establishment of religion); the Second Amendment, which speaks of a right to keep and bear arms; and the Fifth and Fourteenth Amendments, which are said to give rights to due process of law and to the equal protection of the laws. It examines some specific examples of important modern constitutional controversies, which are illuminated by analyzing them in terms of appropriate limits on governmental power, rather than in terms of individual rights.

This chapter examines the role of the Free Speech Clause in the constitutional structure. The Free Speech Clause of the First Amendment states that “Congress shall make no law...abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As we have already seen, the Bill of Rights and the Fourteenth Amendment — like the rest of the Constitution — are not generally intended to protect individual liberty, but rather to organize and place limits upon government. Yet the First Amendment on its face — by singling out freedom of speech, press, and assembly for special protection — does appear to be concerned with rights of the individual.

This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.

This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.

Chapter 3 demonstrated that as a matter of text and history, the Bill of Rights and the Fourteenth Amendment do not create the system of individual autonomy and entitlements that much modern, constitutional discourse suggests that they do. In other words, we do not have a libertarian Constitution. Instead, our Constitution, both as originally drafted and as subsequently amended, is fundamentally a structural document, concerned with the exercise of — and limitations on — governmental power. This chapter further develops this insight, explaining why a structural vision of the Bill of Rights and the Fourteenth Amendment, one focused on limits on power, fits well with both the rest of the Constitution, and with practical realities. It also sets forth a framework regarding precisely what sorts of limits on governmental power are implied by a structural vision of the Constitution.

This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.

In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Clearly, the religion clauses are intended to severely restrain Congress's power to legislate in the area of religion; but are the restrictions on Congress in this area absolute, or limited? More specifically, what restrictions are placed on Congress? When is it that a law can be said to touch on religion; is it only when the law mentions religion, or are there other laws that might fall within the limitations imposed by the religion clauses? And how are the sometimes seemingly contradictory commands of the Establishment and Free Exercise clauses to be reconciled? Finally, and most importantly, how does a structural approach to constitutional interpretation contribute to our understanding of these issues? These are the questions explored in this chapter.

This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.

Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve substantive issues of constitutional theory. There is something to this complaint. A theory of the concept of law merely fleshes out the metaphysical implications of the social commitments governing use of the concept-term “law,” and tells us how to distinguish something that is law from something that is not. But knowing how to do this does not seem to help answer the normative questions typically asked by constitutional theorists: it will not help answer the question of how the constitution is properly interpreted or the question of who should decide what the constitution means. About all an analysis of a concept can tell you is how to identify the things to which the concept applies, but our pre-theoretic understanding of the concept is usually, by itself, enough to do this. This chapter attempts to determine how the Constitution and rule of recognition are related by examining the practices of officials. This will not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.