This is a book about faith, narrative, and constitutional change. For many years American constitutional theory has counted as its central questions the power of judicial review in a democracy and the appropriate behavior of judges and Supreme Court justices. In response many scholars, myself included, have focused on other constitutional actors: social movements, political parties, ordinary citizens, and their interpretations of the Constitution.

This book, however, looks at different issues. I am interested in the question of what attitude members of the public must have toward the constitutional project in order for it to be legitimate, and the dangers...

The subject of this book is faith and story. I shall have a great deal to say about faith in the next three chapters. In this chapter, however, I turn my attention to stories. And not just any stories. My topic is constitutional stories: stories that people in a political community tell each other about who they are, where they have been, what values they stand for, and what commitments they have to fulfill.

Telling stories is a natural part of politics. It is also a natural part of constitutional argument and constitutional law. It is hard to read more...

Faith and story are crucial elements of political legitimacy in a constitutional democracy like the United States. To be sure, that is not how constitutional scholars usually think about legitimacy, but in the course of this chapter I will try to explain why it is so.

As I will use the term in this chapter, legitimacy is a property of an entire political and legal system judged as a whole, rather than of a specific law or action within the system. Legitimacy is more than the mere legal validity of a regime in a positivist sense, but it is something...

In Chapter 3 I argued that faith in the constitutional project underwrites constitutional legitimacy. In this chapter and the next, I focus on some of the problems of constitutional faith.

It is hardly possible to write a book on the role of faith in constitutional democracy without discussing the work of my frequent coauthor and dear friend Sanford Levinson, and I will use his work as the backdrop to this chapter. Faith is one of the most important themes in Levinson’s work, and the word appears, appropriately enough, in the title of his first and best-known book, Constitutional Faith.¹

Levinson’s...

We saw in Chapter 3 that faith in the constitutional system is an important component of political legitimacy, and we saw in Chapter 4 why such faith is fraught with difficulties. This chapter continues the discussion of the predicament of constitutional faith by exploring the connections between faith and interpretive fidelity.

You might think that when lawyers and judges write about fidelity in constitutional interpretation, the first question they would address is whether the Constitution deserves our fidelity. Yet that question is almost never raised in the many books, articles, and treatises on the subject.

This omission, I think, is...

People often think of Brown v. Board of Education as a great transformation in the law, or even a revolution. It is part of the canonical story of progress toward ever greater freedom and equality—Exhibit A in the Great Progressive Narrative. In fact, Brown is a halfway point between an older conception about how the Constitution secures equal citizenship and a newer one. Citizenship is a very large topic, and in this chapter I will focus on only one aspect, the question of constitutional citizenship. I am interested in how the United States Constitution imagines what rights and privileges...

“[W]e think Plessy [v. Ferguson] was wrong the day it was decided,” the Joint Opinion of Justices O’Connor, Kennedy, and Souter declared in Planned Parenthood of Southeastern Pennsylvania v. Casey.¹ Plessy, the justices explained, had asserted that state-enforced separation of the races had nothing whatsoever to do with racial oppression, and that if blacks thought otherwise they were simply hypersensitive.² This was simply wrong in 1896, and the claim became even more obviously wrong as the years progressed.³ Therefore it was completely appropriate for the Court to overrule Plessy in 1954 in Brown v. Board of Education.⁴

The Joint Opinion...

There are two major schools of thought in American constitutional interpretation these days. One is living constitutionalism, the other is originalism. Each school of thought, far from being a coherent whole, is actually a family of related theories that often differ markedly among themselves. But for simplicity’s sake, we can distinguish the two approaches as follows: Living constitutionalists argue that the practical meaning of the Constitution changes—and should change—in response to changing conditions. Originalists argue that some aspect or feature of the Constitution is fixed when the Constitution—or a subsequent amendment to the Constitution—is adopted, that...