My reply to Trevor Morrison’s review of Restoring the Lost Constitution: The Presumption of Liberty in the Cornell Law Review is now available on SSRN here. Because Trevor made four quite different criticisms, each requiring a response, I could not think of a clever unifying title for my reply (which will be published in the Cornell Law Review along with his review). So I called it, Why You Should Read My Book Anyhow: A Reply to Trevor Morrison. Here is the abstract:
In his review of my book, Restoring the Lost Constitution: The Presumption of Liberty, Trevor Morrison takes issue with (1) the relationship I describe between constitutional legitimacy and constitutional method, (2) my particular defense of originalism, (3) the operation of my proposed construction of the Constitution–The Presumption of Liberty–and (4) my interpretation of Lawrence v.Texas.
In this reply I defend the fact that I hold a conception of constitutional liberty at partial variance from that of the Founders, the reasonableness and limits of originalist interpretation, the conception of the police power identified in Restoring the Lost Constitution, and my reading of Lawrence v. Texas. Because Professor Morrison’s objections are not atypical of those I have heard from others, I hope that reading my reply will induce skeptics of my approach to read my book anyway.
Indeed, I often heard these criticisms of my approach from faculty commentators when I was on my book tour last year, so this is a nice opportunity to answer them.
While you are in a downloading mood, you can also download my short essay about Lawrence v. Texas called, “Grading Justice Kennedy: A Reply to Dale Carpenter” here. I posted about it on Tuesday.
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