Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024), is a sweeping rethinking of the uses of history in constitutional interpretation. Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court’s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Disputes about constitutional interpretation are often fights over collective memory. Lawyers and judges construct—and erase—memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single phenomenon: how lawyers use history to adapt an ancient constitution to a constantly changing world. Memory and Authority shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. It explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And it elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes.
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The Cycles of Constitutional Time (Oxford University Press, 2020), explains how America’s constitutional system changes through the interplay among three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional decay and constitutional renewal. These cycles affect the work of the federal courts and theories about constitutional interpretation. The book shows how the political parties have switched sides on judicial review not once but twice in the 20th century, and what struggles over judicial review will look like in the coming decades. Cycles argues that the big threat to American democracy today is “constitutional rot” — the historical process through which republics become less representative and less devoted to the common good. Brought on by increasing economic inequality and loss of trust, constitutional rot threatens our constitutional system. But the book offers a message of hope: American democracy has weathered these cycles before and will get through them again.
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What Obergefell v. Hodges Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Same-Sex Marriage Decision (Yale University Press, 2020) features an all-star cast of legal scholars who rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. The book also provides a critical introduction to the case, recounting the story of the gay rights litigation that led to Obergefell, and explaining how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how—through legal imagination and political struggle—arguments once dismissed as “off-the-wall” can later become established in American constitutional law.
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In Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson and I exchange a series of letters about the causes of America’s current political dysfunction and how to fix our political system. The letters begin in 2015 and go through the beginning of 2018. Along the way we discuss the rise of Donald Trump, the 2016 election, and how recent events exemplify deeper problems in the design and functioning of the American constitutional system. Levinson argues that our Constitution is seriously defective and calls for a set of new amendments or a new constitutional convention, while I argue that we are suffering from constitutional rot and that there are less radical solutions. The book is a debate over whether the current problems of American politics arise from the Constitution’s “hard-wired” features, or whether they arise from the party system, economic inequality, and political culture. It also debates whether the cure for these problems must lie in new amendments or a constitutional convention, or whether there are reforms that do not require constitutional amendment.
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Processes of Constitutional Decisionmaking (Aspen Publishers, 8th ed. 2022), co-edited with Sanford Levinson, Akhil Amar, Reva Siegel, and Cristina Rodriguez, is now in its eighth edition. Long famous for its unique historical approach, the book makes a significant statement about the constitutional canon. You can learn more about the book here.
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Living Originalism (Harvard University Press, 2011), argues that the best versions of originalism and living constitutionalism are not in conflict but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.
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The Constitution in 2020 (Oxford University Press, 2009) edited with Reva Siegel, features essays by some of America’s finest constitutional thinkers about how we should interpret the U.S. Constitution and address the key constitutional challenges of the 21st century.
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The Laws of Change: I Ching and the Philosophy of Life (Sybil Creek Press, 2009) is a new translation of and commentary on the I Ching or Book of Changes, one of the oldest books in human history and a treasure of world literature. This new edition presents the Book of Changes as a book of wisdom, a work of practical philosophy that teaches how to cultivate one’s character, achieve emotional balance and maintain one’s values and one’s integrity in the face of adversity and ever-changing circumstances. You can learn more about the book here.
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Cybercrime: Digital Cops in a Networked Environment (New York University Press 2007) edited with James Grimmelman, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman, and Tal Zarsky, features essays by leading experts in law, criminal justice, and security studies about crime prevention and security protection in the electronic age. Ranging from new government requirements that facilitate spying to new methods of digital proof, the book explains how criminal law-and even crime itself-have been transformed in our networked world.
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The State of Play: Law, Games and Virtual Worlds (New York University Press 2006) edited with Beth Noveck, contains essays about the legal issues raised by virtual worlds and massively-multiplayer online games. The authors include some of the foremost legal scholars, policy analysts and game designers working on the challenges of new virtual environments, where people work, play, and spend increasing proportions of their lives.
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Cultural Software: A Theory of Ideology (Yale University Press, 1998) is a new theory of culture, cultural evolution and memetics that explains how ideologies and beliefs grow, spread, and develop in human minds. It is the first book to apply the study of memes and cultural evolution to the theory of ideology. You can learn more about the book here.
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Legal Canons, (New York University Press 2000) co-edited with Sanford Levinson, explores the idea of canon in law and legal scholarship. It features fifteen essays by leading legal scholars focusing on what the canon and canonicity mean for different areas and aspects of law. You can learn more about the book here.
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