Constitutionalism's Contemporary Critics

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).For some years, the American legal academy has shared two basic presuppositions. The first is that the United States Constitution basically constitutes American identity as well as establishing a particular political system. This means, among other things, that is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution (and therefore, what it means to be “an American”). I have praised Jack Balkin's Living Originalism as not only the best book written on American "constitutional interpretation," but also, I hoped, the last book that would in fact be published on the subject. Alas, that has not been the case. If anything, the “interpretation wars” have only become more intense, given the insistence of a majority of the Supreme Court, in good faith or not, on “originalism” as the royal…