Abstract
INTRODUCTION: IS ORIGINAL MEANING MEANINGFUL? I am honored to have been invited to write a joint review of two fascinating new books about constitutional law by two distinguished scholars at the Yale Law School - Professor Akhil Amar and Professor Jed Rubenfeld. It is something of a daunting task: It is difficult to imagine two more sharply contrasting approaches to the Constitution than Amar's America's Constitution: A Biography and Rubenfeld's Revolution by Judiciary: The Structure of American Constitutional Law. Professor Amar's tome (628 pages) is directed to explicating the original meaning and history of the Constitution - all of it! - but does not purport to offer a theory about how to reconcile that meaning with modern practice that often departs from it. Professor Rubenfeld's slim book (231 pages) offers a theory to justify modern practice, but it is a theory largely divorced from the Constitution's text, structure, and history. In a real sense, these offerings are two ships passing in the constitutional night. In this double-barreled Commentary on both books, I (generally) praise Amar's magnificent scholarship on the Constitution's original meaning and (generally) question the usefulness of high-theory constitutional law scholarship, like Rubenfeld's, that slights consideration of the Constitution's text, structure, and history. If the overall Commentary has a unifying theme, it is that questions of the Constitution's meaning must precede theories about its application - and that the document must direct and constrain constitutional theory and practice, not the other way around. I thus begin with the ...