Fidelity to the best version of ourselves.

• Author: Sager, Lawrence
• Position: Book review

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

This is in the nature of a concurring opinion. I am in general sympathy with Fidelity to Our Imperfect Constitution, and in awe of Jim Fleming's breadth of understanding and capacity to engage so many theorists--many of them prickly--with patience, respect, and intelligence.

1. THE PURPOSE OF OUR CONSTITUTIONAL PRACTICE

   What is the purpose of our constitutional practice? That is the first, orienting question. Constitutional practice, rather than Constitution, because the authority of the written Constitution is derivative of its place within our practice. The text is in service of our practice; our practice is not in service of the text ... at least not until we arrive at the conclusion that our practice is best served by an understanding that connects us to the text in this dominating way. If the text of the Constitution is appropriately understood as directing the behavior of actors in our political community, it is because the complex practice of constitutionalism--which includes that text--makes that behavior morally obligatory for such actors. This is a familiar observation, perhaps, but no less important for its familiarity.

   To be sure, on any understanding of our constitutional practice the written Constitution has an important place. The text is important in a number of ways, not least of which is that, absent serious regard for the text, the people in their role as constituent sovereign have no way of insisting on a change of constitutional course. But the place of the written Constitution in our constitutional practice is defined secondarily, from outside the text, not commanded by the text. Like moral readers of our constitutional practice, originalists of all stripes have to argue from outside the text. This makes the new originalist turn to the theory of language come too early; the place of such theory is necessarily subordinate to a convincing moral account of our practice as a whole.

   The purpose I would claim for our constitutional practice is that it is justice-seeking. (3) It aims at better aligning our institutions, policies, laws and the political community as a whole, with the requirements of justice. This, I think, is sympathetic with what Jim Fleming describes as the aspirational Constitution. I have only these small reasons for preferring this formulation: First, I think that it is useful to keep in mind that it is our constitutional practice that we are characterizing, not merely the Constitution. And second, justice-seeking sharpens the nature of our central constitutional aspirations; perhaps Jim prefers "aspirational" for the opposing reason, namely, that it is more capacious.

2. DELEGATORY CONSTITUTIONAL PROVISIONS

   I want to turn now to a feature of the written Constitution that is morally salient to its role in our practice. Many provisions of the Constitution do not constitute encompassing commitments. For a provision of the Constitution to be "encompassing," for our purposes, it must contain or constitute a full description of the state of affairs to which it refers. A Court, which undertook to enforce an encompassing constitutional provision, would have work to do--choices to make--but those choices would be among implementing strategies, not target states of affairs. Many--perhaps most--of the liberty-bearing provisions of our Constitution are not encompassing in this way.

   Actually, no legal provision can be fully encompassing; there will always need to be some normative engagement with the text to establish its meaning. But let us agree that some provisions reduce the amount of normative engagement to just this side of the vanishing point. This is true, for example, of the Constitution's stipulation that neither "shall any person be eligible to th[e] Office [of the President] who shall not have attained to the Age of thirty five Years." (4) Other provisions, in contrast, leave broad space that plainly requires normative engagement to fill in. This is true, for example of the First Amendment's free exercise clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...," (5) For practical purposes, we can regard provisions like the age requirement of the President as encompassing (or at least largely...