The most common way to think about questions of constitutional interpretation is in terms of the debate between originalism and living constitutionalism. Both sides in that debate assert their fidelity to the true meaning of “the text” by talking about something else, the original understanding of the ratifiers or contemporary societal norms. Dennis Goldford wants to restructure that discussion; he wants to open up the black box of “the text” and make it the subject of the discussion. This, he insists, is the only way to resolve the “Madisonian dilemma” of reconciling democratic values with the idea of a binding constitution.

As Goldford points out, both originalism and conventional nonoriginalism treat the text “positivistically,” as a manifestation of something else that stands behind its terms. As a result, both theories deny the text's “autonomy.” The reason is that both theories—but especially originalism—are caught in the grip of a fear of indeterminacy: “Fearful of what it considers the potential semantic anarchy of the text, originalism goes to the other extreme and denies its semantic autonomy” (p. 159). This is important, as originalists are quite correct to identify commitment to the text as a requirement for democratic legitimacy. But the originalists' fear of indeterminate language undercuts their claim to resolving the tension between democracy and textual commitment: “Originalism claims to be the only theory by which the Constitution democratically binds the future, but the theory's distinction between the constitutional text and the original understanding actually undermines the democratic and binding character of the text” (p. 150).

Goldford's proposal is that we move outside the originalism/nonoriginalism debate altogether by restoring the “binding capacity of the language” without an appeal to any outside set of limiting or informing principles. The result, the author says, would not be to leave judges free to impose their policy preferences, as originalists fear; the language of the text itself would impose constraints. At the same time, an “interpretive” approach would respond to the second major flaw that he sees in modern constitutional theories, the search for a single right answer. Language constrains, but it does not dictate a single outcome, unlike the false certainties of originalist historiography or living constitutionalist invocations of the requirements of modern moral reasoning. Thus, says Goldford, read properly, the text can be granted “semantic autonomy” with little genuine risk of “semantic anarchy” (p. 164). The argument thus breaks into two parts, an objective description of the constraints inherent in a commitment to interpretive textualism (pp. 195–200) and a prescriptive argument for a constitutional discourse in which disagreement is understood “not as error or heresy, something to be avoided and eliminated, but rather as naturally, essentially, and inescapably political” (p. 290).

The descriptive, objective element of the argument is by far the more problematic. Goldford proposes that we should conceive of the Constitution “ontologically,” as constitutive of our social environment, which is the source of its binding authority to impose constraints: “We live in the world constituted by the Constitution…. As such a living text, the Constitution is already a structure of constraint” (p. 267). What gives the Constitution this power to define and structure social reality is “intersubjective meaning,” which “constitutes the individual,” a bit of neo-Kantianism borrowed from the communitarian theories of Charles Taylor (p. 272). As a result, law as social practice occupies a level of reality that is inaccessible to our conscious consideration, a “point of its own that is independent of what any particular interpreters might understand it to be at a given time” (pp. 272–73). This is an undeveloped and not very plausible argument. Taylor's theory was based on a model of a tightly knit community that provided the entire social environment of development from birth; it is extremely difficult to conceive of “America” in these terms, let alone to see how the constitutional text—which the vast majority of Americans have never seen—becomes the core element of each of our collective consciousnesses.

Goldford's argument is more plausible in its prescriptive moments, as when he declares that the Constitution's binding authority “relies ultimately on the reader's willingness to participate as an active subject in the activity of constituting meaning; we are actively self-constituting as political subjects and objects simultaneously” (p. 275, emphasis added). That is, he comes close to presenting an argument to the effect that the resolution of the Madisonian dilemma lies in a shared commitment to treat the Constitution as though it were an element of intersubjectively shared meaning. The Constitution, in this view, defines the language of a particular discourse that participants willingly and consciously adopt as an expression of their commitment to constitutionalism: “The ‘deep structure’ of the Constitution, therefore, is … the ongoing, concrete, historical practice of constitutional discourse” (pp. 277–78), which determines “a structured range of legitimate answers for the rightness of which one can only persuade, not demonstrate” (p. 279).

This latter, prescriptive argument seems to be the argument that Goldford actually wants to make. Read this way, he is joining in with a growing literature that focuses on applying theories of textuality to the study of constitutionalism, including the New Originalist theories of Keith Whittington (with whom he has far more in common than he recognizes). But the argument remains undeveloped: Is Goldford appealing to the idea of customary discursive conventions growing out of historical practice? Is he claiming that the Constitution's text generates the historical practice of constitutional discourse? Or is it his assertion that we ought to undertake to think of the Constitution as though one of these claims were true in order to fulfill our duties as actors in a constitutional system? Ultimately, the relationship among the political, literary, and social psychological arguments remains unclear. What we are left with is a sharp, provocative critique of many of the standard categories of constitutional discourse, a suggestion of a direction for further development, and a strong argument for the desirability of escaping the increasingly sterile categories of the originalism/nonoriginalism debate.