About five years ago I was asked to give a lecture in Moscow on the question: Why do Europeans and Americans take distinctively different approaches to the scope of free speech; in particular, why are Europeans—but not Americans—willing to ban hate speech? This puzzle started me thinking about the systemic differences between the European and American constitutional traditions. I formulated a few claims for the lecture, which touched upon some of the arguments in this book. Bruce Ackerman paid me the compliment of saying, in his inimitable fashion, that I had “an idea.” This was all the encouragement I needed to begin an extended exploration of American constitutional history. I was in the midst of these studies when Timothy McVeigh was charged with killing 168 people by planting a bomb in the federal building in Oklahoma City, allegedly a terrorist action and mass murder on behalf of the Republic as McVeigh thought the founders intended it.
Something was awry. How could the noble American dream of 1787 end up as homicidal terror in Oklahoma City? And how could we Americans who prosecute criminals, teach law, and write books—we the