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01/03/2013

Sean Wilson, The Flexible Constitution
Mike Rappaport

This is a new philosophically oriented book on constitutional interpretation, including a critique of originalism.  From the Amazon description: 

This is an ambitious work on constitutional theory. Influenced by the views of Ludwig Wittgenstein, Sean Wilson tackles the problem of how a judge can obey a document written in ordinary, flexible language. He argues that whether something is “constitutional” is not an historical fact, but is an artisan judgment. Criteria are set forth showing why some judgments represent superior connoisseurship and why others do not. Along the way, Wilson offers a potent critique of originalism. He not only explains this belief system, but shows why it is inherently incompatible with the American legal system. His conclusion is that originalism can only be understood as a legal ideology, not a meaningful contribution to philosophy of law. The ways of thinking about constitutional interpretation provided in the book end up challenging the scholarship of Ronald Dworkin and numerous law professors. And the findings also challenge the way that professors of politics often think about whether a judge has “followed law.”

The book's website is here

Looking over the website, I found this provocative claim by Wilson referencing this article by Ian Bartrum: 

Ian Bartrum has fired the first cannon fire in the struggle to take back constitutional intellectualism. Originalists are wrong because their approach is intellectually indefensible. No person who adheres to originalism can be a serious constitutional thinker. Any person who adheres to it adopts a flawed intellectual perspective. My book never says these things; it shows them. And Ian Bartrum has just picked up this very idea and is helping to build upon it, in his own way, with his own approach. 

This is strong language.  I hope there are strong arguments to back it up!