Flexible Constitution

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.”

[This is] an excellent book which advances a new Wittgensteinian theory of constitutional interpretation., 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., 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., Wilson places himself among relatively few, including Brigham, who seem to not simply comprehend Wittgenstein but can explain it masterfully., 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.

Sean Wilson is an assistant professor at Wright State University