Fidelity to our imperfect Constitution: a response to six views.

• Author: Fleming, James E.
• Position: In this issue, p. 389, 397, 407, 423, 441, 479

FIDELITY TO OUR IMPERFECT CONSTITUTION By James E. Fleming. (1) New York: Oxford University Press. 2015. Pp. xv + 243. $75.00 (cloth).

1. INTRODUCTION

   I am deeply grateful to Constitutional Commentary for publishing this symposium on my recent book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. In the book, I put forward a sustained critique of originalism--whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a "moral reading" of the U.S. Constitution (3) and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation. (4) By "moral reading" and "philosophic approach," I refer to conceptions of the Constitution as embodying abstract moral and political principles--not codifying concrete historical rules or practices--and of interpretation of those principles as requiring normative judgments about how they are best understood--not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, I show the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. I argue that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach, not any version of originalism or living constitutionalism. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity (pp. xi, 3).

   All but one of the essays included here were originally drafted for a wonderful symposium Imer Flores organized on the penultimate draft of the book at the National Autonomous University of Mexico (UNAM). I benefitted greatly from the commentaries there by Sotirios A. Barber, Imer Flores, Ken I. Kersch, Linda C. McClain, and Larry Sager (all of which are published here in revised form), as well as those by Richard Fallon and Larry Solum. I revised the book significantly based on criticisms Fallon and Solum made in draft papers and remarks at the UNAM conference that are not published here. Fallon's paper made clear how important it was for me to stress that my conception of fidelity in constitutional interpretation is not theological or religious in the way that Jack Balkin's conceptions of constitutional faith, fidelity, and redemption seem to be. (5) His paper was so cogent that I completely accepted his criticisms and accordingly revised the book throughout. Therefore, having concluded that his essay had accomplished its constructive purpose, he quite sensibly decided not to publish it. Solum's remarks prompted me to clarify that in my book I am addressing his programmatic account of "the new originalism" as a family of theories in his book, Constitutional Originalism. I am not addressing his own theory of originalism, which he has been developing in a number of works, published and unpublished, over the years. I understand, from conversations with Solum, that he plans to elaborate his own theory of originalism in three books to be published over a number of years. I also thank Robert W. Bennett for contributing a review to this symposium. I shall take up the essays in alphabetical order.

2. BARBER: RESPONDING TO THE "PERSISTENT RESURGENCE OF ORIGINALISM"

   In 2007, Barber and I published a book, Constitutional Interpretation: The Basic Questions, in which we took up Dworkin's famous call for a "fusion of constitutional law and moral theory," arguing for a philosophic approach to constitutional interpretation. (6) In doing so, we systematically analyzed competing approaches--textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism--that aim and claim to avoid making moral and philosophic judgments about the best understanding of the Constitution. We argued for a "fusion of approaches": "Within such a fusion, we ... understand text, consensus, intentions, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best interpretation and construction of our constitutional commitments." (7)

   This book is a sequel or companion to Barber's and my prior book. In this book, I criticize particular originalisms in a more thoroughgoing way and demonstrate the concessions many originalists have made to the moral reading or philosophic approach. Furthermore, I elaborate the place and constructive uses of original meaning, precedent, and tradition in a philosophic approach. I also recast leading conceptions of living constitutionalism as moral readings that strive to be faithful to the best understanding of the Constitution. I engage especially with new varieties of originalism and living constitutionalism that have emerged more fully since that prior book was completed (pp. xi-xii).

   Barber says that, since 2007, he has excused himself from the debate with "the so-called new originalisms" until now "because [he] thought that there was little to be said about constitutional interpretation that hasn't been said" and because he thought "one and only one approach" to constitutional interpretation "makes sense," namely, the approach Dworkin, Barber, and I have defended. (8) Even if Barber is right that there was "little to be said ... that hasn't been said," I think it may be worthwhile to repeat (and, where necessary, reformulate) what we said before in order to rebut the new originalisms that have sprung from the hydra head of originalism. Indeed, since 2007, many people have claimed to be saying something new in defense of new originalisms. I have been invited to a number of conferences assessing these new originalisms. Instead of sitting on the sidelines and simply saying, "read Barber's and my 2007 book, Constitutional Interpretation: The Basic Questions," I have thought it important to participate in these debates with the new originalists, reformulating our arguments in defense of a philosophic approach and criticizing their new formulations.

   Barber acknowledges that "there are questions to ask about the...