« Is Glenn Reynolds Becoming an Originalist?
Michael Ramsey
| Main | Mark Kende: Constitutional Pragmatism, the Supreme Court, and Democratic Revolution
Michael Ramsey
»

11/27/2012

Two Reviews of Adam Freedman's The Naked Constitution
Michael Ramsey

In Stripping the Constitution, Justin Dyer (University of Missouri -- Political Science) reviews Adam Freedman's The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books, 2012).  From the review:

Freedman’s case for originalism is straightforward, and it rests on three premises: The Constitution is law, the law should be followed, and the meaning of the Constitution today can and should be derived from the original public meaning of the text at time of its ratification. Following this method of interpretation puts Freedman at odds with most of the Court’s controversial twentieth-century decisions. In chapters devoted to constitutional personhood, Congress, the presidency, the courts, speech, religion, guns, property, criminal punishment, and federalism, Freedman walks the reader through landmark Supreme Court cases and offers his own take on the original public meaning of relevant constitutional provisions.

For the uninitiated, The Naked Constitution is Con Law 101 taught by an irreverent instructor and an unabashed conservative. And although the book doesn’t offer anything new to those already well-versed in American constitutional law, Freedman’s polemics and witty sarcasm enliven the discussion and offer a humorous escape from the doldrums that normally come with reading about twentieth-century constitutional litigation.

Still, there are limits to how far original public meaning can take us. In a 1988 speech at the University of Cincinnati Law School, Justice Antonin Scalia famously called originalism the “lesser evil” (when compared with all other theories of interpretation), and he identified what he took to be originalism’s two greatest challenges: first, original public meaning can be extremely difficult to divine; and second, even when it is known, very few people are willing to adhere to original meaning undiluted by a commitment to following established legal precedent.

To these challenges we might add a third: Some of the provisions in the Constitution are maddeningly vague, and there simply is no one original public meaning. Although it is perhaps asking too much for Freedman to adequately treat every facet of originalist theory and method, the practical project Freedman is trying to advance is hamstrung by the challenges and inherent limits of originalism.

And at the Constitutional Law Prof Blog, Steven D. Schwinn has this review: Freedman's Naked Constitution.  From Professor Schwinn:

Adam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism.  It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism.  (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)

But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent.  And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers.  I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.

And that's OK.  This book seems designed first as a political argument, only next as a constitutional one.  It's red meat for conservatives, and it'll surely rile progressives.  If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you.  And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.