Despite the outward success of his visit to the USA, Sigmund Freud always spoke as if some trauma had befallen him there. He blamed the country for physical ailments that afflicted him long before his visit. Freud's biographers have been bemused by his reaction, wondering whether some terrible unknown event might have happened in America that could explain this. The Interpretation of Murder is strikingly written literary thriller constructed around Freud's American visit. An attractive young debutante is discovered bound, whipped and strangled in a luxurious New York apartment and another society beauty narrowly escapes the same fate. But nothing about the attacks--or the victims--is as it seems.
--Barry Forshaw

Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.

This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.