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.

Trump and his administration brazenly interpreted laws to expand the president’s powers to open public lands and seas to drilling, to limit states’ powers to protect their waters from oil and gas infrastructure, and to advance deregulation in the oil and gas sector. The district courts ruled against the Trump administration and federal agencies in several (but not all) instances, and with the Biden administration in power, many of these cases will not proceed to the higher courts. The more long-lasting legacy of the Trump administration is his reshaping of the federal judiciary, made possible with the support of the Senate majority leader Mitch McConnell, congressional Republicans and an array of conservative and corporate stakeholders. Judges’ views of the administrative state, i.e., as an ally in protecting individuals against powerful corporations or as a foe to personal liberty and property rights, often color their decisions. Trump nominated judges who are skeptical of the administrative state and who lean towards legal interpretations that limit Congress’s ability to enact expansive environmental laws and that limit agencies’ statutory powers. Trump’s appointments – three Supreme Court judges and more than a quarter of active federal court judges – shifted the courts toward deregulation.

The prologue spotlights twenty-first-century uses of both the founding era and the biblical past to introduce the book’s central contention that biblical and constitutional debates over slavery cultivated a sense of historical distance in antebellum America. The prologue points to examples of how contemporary Americans both ignore and highlight historical distance in making political use of the founding era and the biblical past. It suggests that in both the antebellum era and in the twenty-first century, politics has shaped American approaches to these pasts and their corrsponding texts – the Bible and the Constitution. At the same time, the prologue maintains that the idea of the past as distant, which has become a common assumption in our period, only began to emerge in the antebellum era. To highlight the continuities and differences between antebellum and twenty-first century thought, the prologue references phrases such as “black lives matter” and “make America great again,” even as it points towards its central focus on the antebellum developments that shed light on the meanings of such phrases.

Paralleling the summing problem associated with identifying a single intention of a multimember lawmaking body, the semantic summing problem appears when there are competing potential meanings for constitutional words or phrases. This chapter addresses the question of whether the new digital tools used in corpus linguistics searches have the potential to offer a “Big Data” solution to the problem. By examining the nature of the digital collections being searched, as well as the data analysis tools being employed, this chapter shows that corpus linguistics will not solve the semantic summing problem, and may well exacerbate it.

Previous chapters have focused primarily on factual issues bearing on theories of constitutional interpretation. This chapter turns toward perceptions as it explores how both elite and popular opinion influence the justices’ perspectives on interpretive issues. These perception issues fall generally into the Court’s need for what Richard Fallon has called “sociological legitimacy,” along with the individual justices’ views of their “fidelity to role,” as described by Lawrence Lessig. The specific issues addressed are aspects of what are sometimes considered “conventional wisdom,” and they turn out not to be true. The first is the notion that any interpretive approach based on the Framers’ understandings is so far out of step with the contemporary thinking in the international community of judges and scholars that it represents little more than a peculiarly American form of “ancestor worship,” and the second is the belief that calling on the Framers’ understandings is principally a tool for advancing conservative social and political views.

Nearly all of our current debates over constitutional interpretation have happened before, including those involving complex insights from linguistics, philosophy, and history that feel very modern to us. This book, while not intended to be a complete account of judicial decision making, has focused on what it has meant to interpret a legally authoritative text for many generations, and has shown how that traditional definition of interpretation maps onto the creation and interpretation of the US Constitution. It argues that constitutional theory needs to pay considerably more attention to the one constant theme through the various cycles of interpretive methods over the centuries: a search for the will of the lawmaker.

The nation’s Founders have tremendous public appeal, and advocates of originalism, such as Justice Antonin Scalia, and the living Constitution, such as David Strauss, have invoked the Founders for support in their arguments for interpretive methods that nevertheless leave the Framers out of the picture. As a result, American constitutional theory has increasingly shifted its focus away from the lawmaker’s intentions. To provide a sound basis for the process of interpretation, constitutional theory needs to return to its historical core, which is an understanding of the decision made by the lawmaker in adopting the text. As a practical matter, determining that original choice will require an inquiry into the Framers’ understandings as shown in the record of the drafts and debates.

To determine the “will of the legislator,” William Blackstone pointed to “signs” of those intentions, the first of which is the words understood in their usual sense. This chapter will show the degree to which the words, even in context, have the potential to leave many important constitutional issues unresolved, hence the need for other evidence of the will of the lawmaker. In particular, this chapter will show that the “summing problem,” which has most often been associated with the difficulty of determining a single intention of the Framers, is matched by its semantic equivalent: the fact that the evidence of objective public meaning can lead to multiple potential meanings. To describe the problem, the chapter analyzes two clauses that have generated a great deal of litigation and interpretive controversy – the tax clauses and the Establishment Clause. In each case, there are multiple equally strong candidates for the objective public meanings of the words.