Chapter 13 synthesizes the book’s core claim: American constitutional war powers are not a single “start” switch but an interlocking system of authorities that shapes whether wars occur, who fights them, how and where force is used, how war aims evolve, and how wars end. It outlines how a possible future war with China would involve or test all of these powers. The chapter argues that powers to initiate hostilities are inseparable from powers for organizing forces, posturing and threatening, setting objectives, funding, oversight, and defining the terms of peace. It reframes the “imperial presidency” narrative by showing that while presidential initiative has expanded, Congress’s capacities have grown as well – especially through force-building, appropriations, and peacetime institutional design – and that many of the most consequential shifts were joint. It explains why originalism is inadequate: later military capacity, alliances, covert action, and technology forced constitutional accommodations the Founding generation could not specify. At the same time, it rejects the view that war-powers law is merely politics or necessity, emphasizing how law constrains strategy. Finally, it argues that durable reform lies less in rigid restrictions on the use of force than in strengthening Congress’s strategic guidance and oversight, especially as future conflicts further blur the line between peace and war.

This chapter shifts addresses the advocacy agenda of the LGBTQ rights movement, specifically the pivotal role played by the US Supreme Court. In less than two decades, the Court recognized the right to engage in same-sex sex, mandated recognition of same-sex marriage, and interpreted Title VII of the 1964 Civil Rights Act to include discrimination on the basis of transgender status and sexual orientation as prohibited forms of sex discrimination. These developments fundamentally altered the legal lives of LGBTQ people. However, systemic efforts to undermine the integrity of the courts threaten these victories and the lives built around them. This chapter concludes that the current dominant interpretive approach of the US Supreme Court, known as originalism, is overly restrictive and arguably an expression of restorative nostalgia that prevents the Court from fulfilling its duty as a constitutionally mandated check against tyranny. An independent judiciary can serve as a powerful bulwark against democratic decline; however, courts can also provide a powerful legal veneer for otherwise patently autocratic policies. Democracy scholars refer to this as autocratic legalism. The increasing specter of autocratic legalism in the Unites States threatens to diminish the role of the Court as a tool for democratic self-defense.

This chapter undertakes a detailed comparison between traditionalism and other theories of constitutional law. It first distinguishes the activity of constitutional interpretation from that of determining what the law of the Constitution is. Next, it compares originalism and traditionalism, and after that nonoriginalism and traditionalism. The upshot is that traditionalism can certainly be consistent with at least some varieties of originalism, but the ends of the theories are different. The same is true of most nonoriginalist theories, which are largely theories of interpretation. The chapter concludes by considering various cases of possible conflict between text and tradition to see which has, historically, tended to trump the other. The historical examples suggest that tradition holds its own in such cases. But the conflict is unlikely to come up very often, for reasons the chapter describes.

This introduction outlines a comprehensive study of the U.S. Constitution’s structure, marking its 237th year as the oldest modern constitution. It aims to equip readers – from law students to everyday Americans – with tools to understand its framework of representation, separation of powers, checks and balances, federalism, and the Bill of Rights, addressing enduring questions like the legitimacy of secession, the scope of national powers, presidential authority in foreign affairs and war, judicial review’s origins, and Congress’s taxing and spending powers. The book challenges myths, such as the existence of a “general welfare clause,” and critiques both originalist and living constitutionalist views, arguing, for instance, that enumeration limited executive, not just national, power, and that functionalism fuels the imperial presidency. Organized into seven parts and eighteen chapters, the book explores the Constitution’s compound republic, the distribution of legislative, executive, and judicial powers, and federal-state dynamics. By engaging recent scholarship, it seeks to clarify the Constitution’s original design while advocating its continued relevance today.

Originalism aims to restrict the discretion of the judge by narrowing the meaning of the language of the Constitution to a narrow doctrine whose substantive limitations are obvious and rigid. If the Constitution’s meaning could legitimately be restricted to a small set of explicit rules, then any interpretation of constitutional requirements not strictly required by those rules could properly be rejected as illegitimate judicial activism. Unfortunately for originalism, fidelity to the language of the Constitution cannot generate such a result. Many of the most fundamental provisions of the Constitution state their requirements in broad, vague language that can only be implemented faithfully through the exercise of interpretive discretion. Instructions phrased in this way appeal to legal concepts (e.g. equal protection, due process), and the judge can only follow the instructions contained in that language by elaborating the relevant concept into a conception. The judge, that is, must make up his or her own mind—on due reflection—about what due process or equal protection requires. Fidelity to the Constitution (and to the language of all legal standards that appeal to concepts, rather than laying down conceptions) thus requires more, not less, interpretive discretion.

This chapter provides a preliminary sketch of the Supreme Court of the current era. It describes the distinctive political environment in which the sitting justices were appointed and in which they function. It highlights the role that a conservative legal organization, the Federalist Society, has played in vetting potential nominees and in ensuring that the sitting justices who were appointed by Republican presidents are reliably conservative in their commitments. The chapter also discusses the rise of originalism as a theory of constitutional interpretation and frames issues about the relationship between originalist methodology and substantively conservative values that will be a focus of attention through the remainder of the book. Finally, it gives introductory, capsule biographies of each of the current justices. As later chapters will elaborate, it is impossible to understand the Court’s dynamics without a grasp of how the individual justices, taken one by one, approach their jobs.

This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.

This chapter considers the nature of constitutional “law” in the Supreme Court. In pursuing that inquiry, the chapter begins with the premise that the Constitution is law not because the Founding generation adopted it but because relevant constituencies in the United States today accept it as authoritative. Moreover, because the Constitution does not include all of the rules necessary for its own interpretation, many of the norms that mark the limits of permissible constitutional interpretation, including the doctrine of stare decisis, are similarly grounded in shared understandings and accepted practices among the justices and other officials, not written rules laid down by prior generations. The acceptance-grounded law that applies to the justices is enforceable through extra-judicial mechanisms that could potentially include defiance of Court decisions if they were widely perceived as overstepping the justices’ lawful authority. But we should recognize that the “law” that constrains the justices is different from more ordinary law. In a normative vein, this chapter describes adaptive judicial interpretations of a Constitution that was mostly written in the eighteenth century as a functional necessity. But it presents a more troubled assessment of developments in the current politically charged and divided era.

This chapter traces the arcs of change that are visible in the interpretation of the First Amendment’s Establishment and Free Exercise Clauses. To a rough approximation, the Supreme Courts over which Earl Warren and Warren Burger presided as chief justice (from 1954 to 1969 and 1969 to 1986, respectively) sought to enforce a “wall of separation” between church and state. That wall has crumbled in the decades since. The current Court has embraced the originalist position that historical understandings define the exclusive Establishment Clause limitations on permissible governmental acknowledgment of and support for religion. Among the outstanding questions is whether the Warren Court’s iconic decisions banning prayer in the public schools will survive. The pattern of decisions under the Free Exercise Clause is complex, with current trends reflecting a reversal of positions by judicial conservatives and judicial liberals alike. Justice Scalia epitomized the views of conservatives of his generation in holding that the Free Exercise Clause does not require the government to exempt either religious organizations or individual believers from generally applicable laws that impede religiously motivated practices. More recently, as the parties seeking exceptions have increasingly included conservative Christians, the conservative supermajority has often supported their demands.

This chapter surveys Supreme Court decisions involving the Second Amendment right “to keep and bear arms.” Nowhere is the current Court’s approach more originalist. Before 2008, the Court had never held that the Second Amendment protects a personal right to possess weapons unrelated to service in what the Amendment’s preamble characterizes as the need of “free states” for “a well-regulated militia.” This chapter describes events leading to the Court’s turnaround and analyzes its decisions since then. In applying other constitutional guarantees, the Court frequently asks whether restrictions are “narrowly tailored” to important or “compelling” governmental interests. By contrast, it insists that the permissibility of modern regulations of firearms depends exclusively on whether analogous restrictions were historically tolerated. In response to difficulties that the lower courts encountered in determining whether challenged regulations had historical analogues, the Court recently explained that precise factual similarity matters less than whether a modern restriction is “consistent with the principles that underpin our regulatory tradition.” Applying that test poses formidable challenges. But if the Court’s majority views its prescribed approach to defining Second Amendment rights as successful, it could imaginably extend its exclusive reliance on history and tradition to identify constitutional violations to other areas.

This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

Despite widespread and well-reasoned objections to its methods, originalism has gained widespread prominence as the au courant doctrine of legal interpretation. This chapter offers a rhetorical analysis of originalism’s ethos – namely its communal indwelling rooted in rule of law and American democratic values – to explain its strange persistence as well as provide a critical starting point for developing effective critical interventions in future jurisprudential debates about the merits of originalism as a theory of legal meaning. Drawing from Martin Heidegger’s theorizing of ethos, the chapter reconceptualizes ethos and recovers its full meaning beyond good character and wisdom. The chapter situates this full meaning within the emergence of modern originalism as represented in the work of Professor Raoul Berger and then traces the meaning’s evolution through the work of Justice Antonin Scalia and Professor Larry Solum, who both rely on the ethos of indwelling to overcome originalism’s deficiencies rather than their perceived ethos of personal character and effective reasoning. The chapter demonstrates that it was Berger, Scalia, and Solum’s ability to connect their work to a deep-seated shared sense of communal identity that enabled them to secure a place of pride for originalism in jurisprudential debates.

What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.

This chapter focuses on additional mechanisms for channeling judicial behavior that can be regarded as products of the developments surveyed in the Chapters 4, 5, and 6. One is judicial specialization. The other is the rise of algorithmic-seeming interpretive methodologies, specifically textualism and originalism. The chapter critiques the methods and emphasizes that, despite some proponents’ efforts to portray them otherwise, neither succeeds at eliminating judgment from its central role in judging.