The Flexible Constitution

The Flexible Constitution

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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."
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Product details

  • Hardback | 236 pages
  • 157.48 x 231.14 x 22.86mm | 453.59g
  • Lexington Books
  • Lanham, MD, United States
  • English
  • New
  • 17 Tables, unspecified; 11 Illustrations, black and white
  • 0739178156
  • 9780739178157
  • 1,811,376

Review quote

[This is] an excellent book which advances a new Wittgensteinian theory of constitutional interpretation. -- George Martinez, Southern Methodist University From Wittgenstein to connoisseur judgment, this book reimagines basic issues in constitutional interpretation. It suggests new forms for understanding ongoing debates and provides new maps for negotiating them. -- John Brigham, University of Massachusetts, Amherst In The Flexible Constitution, Sean Wilson provides a welcome rebuttal to the modern originalist movement in constitutional theory. In straightforward and elegant prose, Wilson reminds us that ordinary language-which the Constitution certainly purports to employ-cannot provide the kind of determinate meanings that make a strong form of originalism possible. All in all, the book is a philosophically rigorous counterpoint to the often oversimplified national debate about constitutional interpretation. -- Ian Bartrum, William S. Boyd School of Law, UNLV Wilson places himself among relatively few, including Brigham, who seem to not simply comprehend Wittgenstein but can explain it masterfully. -- Aaron R.S. Lorenz, Ramapo College The Flexible Constitution brings Wittgenstein's analysis of language-meaning to constitutional theory, showing how many common criticisms of originalism can find their home in that analysis. Its conclusions that constitutional law is best seen through an esthetic lens and that connoisseur judgments are central to determining the constitution's meaning opens a provocative line of inquiry that I hope other scholars will follow. -- Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School Sean Wilson's clearly-written and lucidly organized book demonstrates the failings of originalist theory. His major contribution is in his use of the concept of "connoisseur judgment," which he draws from Wittgenstein's aesthetics to show how the ordinary language of the Constitution can and should be interpreted. I find his conclusion compelling: originialism is a distraction from the proper goal of cultivating connoisseur judgment. -- Francis J. Mootz III, University of the Pacific
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About Sean Wilson

Sean Wilson is an assistant professor at Wright State University
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Table of contents

Chapter 1: Wittgenstein, Law and Originalism Part I: Interpreting the Constitution Chapter 2: Obeying Flexible Commands Chapter 3: Is There a Fixed Meaning? Chapter 4: Public Meaning v. Meaning as Use Chapter 5: The Flexible Constitution Chapter 6: Structuralism and Polysemy Chapter 7: Law as Connoisseur Judgment Part II: Understanding Originalism Chapter 8: The Philosophy of Framers' Intent Chapter 9: Why Framers' Intent is Flawed Chapter 10: The New Originalism Chapter 11: The Constitution as Old Society Chapter 12: Cultural Construction Chapter 13: What Originalism Really Is Appendix: The Philosophical Investigation
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