Despite its apparent remoteness from everyday politics and its often esoteric character, constitutional theory in the United States is never a matter of purely abstract, disinterested speculation. As the legal expression of essentially political conflict, controversies in American constitutional theory are, rather, the theoretical and principled expression of intensely partisan, practical concerns. Stimulated by the Warren Court and its jurisprudential legacy, the dominant controversy in contemporary American constitutional theory for some fifty years has been the conflict over the merits of the interpretive paradigm known as “originalism,” “the theory that in constitutional adjudication judges should be guided by the intent of the Framers.” As a work of constitutional theory, this book seeks to explore the nature of American constitutionalism through an analysis of the nature of constitutional interpretation. Specifically, its guiding premise is that a reconsideration of the originalism debate will illuminate the essentially constitutive character of the Constitution, and, in turn, that an understanding of that constitutive character will cast a fresh light on the familiar originalism debate.

Although the originalism debate brewed quietly in academic and intellectual circles throughout the 1970s, the general public's awareness of it was stimulated by the determined and single-minded jurisprudential agenda of the Reagan administration during the 1980s. “The most basic issue facing constitutional scholars and jurists today,” stated a 1987 report of the Office of Legal Policy in the Reagan Justice Department, “is whether federal courts should interpret and apply the Constitution in accordance with its original meaning.”