Intelligent or unintelligent fidelity?

• Author: Flores, Imer B.
• 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).

The moral reading insists that they misunderstood the moral principle that they themselves enacted into law. The originalist strategy would translate that mistake into enduring constitutional law.

--Ronald Dworkin, Freedom's Law (3)

We have to choose between an abstract, principled, moral reading ... and a concrete, dated, reading.

--Ronald Dworkin, The Arduous Value of Fidelity (4)

I.INTRODUCTION

Advocating a moral reading to interpretation in general, and to constitutional interpretation in particular, I cannot do anything less--as a fellow moral reader--than celebrate the appearance of James E. Fleming's Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. I endorse completely the commendations included on its dust jacket, especially where Richard Fallon states: "James Fleming emerges in this book as the ablest current defender of a 'moral reading' approach (long championed by Ronald Dworkin) that calls upon judges to make candid moral judgments in interpreting the Constitution we have, not fashioning a new one." Michael C. Dorf also salutes: "Fleming picks up the torch laid down by the late great Ronald Dworkin as the leading champion of a moral reading of the Constitution. He is a worthy successor."

In the "Acknowledgments" section of the book, the author declares explicitly that it is a "sequel or companion" (p. xi) to one co-authored with Sotirios A. Barber, entitled Constitutional Interpretation, (5) but remains implicit that it is also a "sequel or companion" to another one co-authored with Linda C. McClain on constitutional liberalism (as a form of mild perfectionism), titled Ordered Liberty, (6) as well as to his own Securing Constitutional Democracy. (7) Additionally, he discloses that "Fidelity to Our Imperfect Constitution," (8) a homonymous article, "is the inspiration not only for the name of this book but also for my longstanding conviction that it is imperative to challenge the originalists' pretensions to a monopoly on concern for fidelity in constitutional interpretation" (p. xiii).

This article was Fleming's contribution to a symposium that he co-organized on "Fidelity in Constitutional Theory." (9) The symposium and his response were prompted by the publication of Ronald Dworkin's Freedom's Law: The Moral Reading of the American Constitution, and his 1996 Robert L. Levine Distinguished Lecture at Fordham Law School, entitled "The Moral Reading of the Constitution," which was published the following year as "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve." (10)

In this Article, I review James E. Fleming's Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. In Part II, I reassess Dworkin's "moral reading," and in Part III, I reevaluate Fleming's argument both "for moral readings and against originalisms," which can be characterized as "fidelity to our imperfect constitution." Finally, in Part IV, I offer conclusions, including the kind of fidelity that moral readers and everyone else should adopt.

2. RONALD DWORKIN'S MORAL READING

Dworkin's "moral reading" has been traced all the way back to the publication of Taking Rights Seriously, where he accentuated--in Chapter 5, "Constitutional Cases"--his concern with the "philosophy of constitutional adjudication" and argued that "[constitutional law can make no genuine advance until it isolates the problem of rights against the state and makes that problem part of its own agenda. That argues for a fusion of constitutional law and moral theory...." (11) However, the origin of this multi-cited passage actually occurred earlier, since it appeared, for the first time, in the New York Review of Books, as "A Special Supplement: The Jurisprudence of Richard Nixon," which ends with a final paragraph (not included in the book version) commenting on the then recent appointment of William H. Rehnquist as Associate Justice to the Supreme Court (1972-1986). (12) Dworkin somehow anticipated that Rehnquist would later be nominated by Ronald Reagan to become the 16th Chief Justice of the Supreme Court (1986-2005): (13)

Mr. Justice Rehnquist is relatively young, and he has demonstrated intellectual power; it is likely that he will become the intellectual leader of the Nixon court. Contrary to Nixon's advertisement, he is not, on the record, a champion of judicial restraint. He is a conservative activist, who can be expected forcefully to argue not for deference but for a narrow conception of individual rights. Liberals who oppose that conception will need more than the old rhetoric about the Court being the moral tutor to the nation; they will need a moral theory that shows why the rights they insist on are requirements of human dignity, or are for some other reason requirements that the nation must recognize to make good the promise of its constitutional system. (14) In short, a moral reading is necessary to "make good" the promise(s) of a constitution. Constitutions are drafted--here, there, and everywhere--in abstract normative terms, stating not only where we are in the present and even where we were in the past, but also where we expect to be in the future. A moral reading of the Constitution as written based on the interpretation and application of abstract clauses containing principles, including moral ones, is necessary and constitutions should not be rewritten via the mutation of the old document or the invention of a new one. In Dworkin's words: "The moral reading proposes that we all--judges, lawyers, citizens--interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice." (15) Furthermore, as he insisted:

Judges may not read their own convictions into the Constitution. They may not read the abstract moral clauses as expressing any particular moral judgment, no matter how much that judgment appeals to them, unless they find it consistent in principle with the structural design of the Constitution as a whole, and also with the dominant lines of past constitutional interpretation by other judges. They must regard themselves as partners with other officials, past and future, who together elaborate a coherent constitutional morality, and they must take care to see that what they contribute fits with the rest. (I have elsewhere said that judges are like authors jointly creating a chain novel in which each writes a chapter that makes sense as part of the story as a whole.) (16) In that sense, Dworkin not only assumes the distinction between interpretation and invention, but also applies the dimensions of "fit" and "justification" to distinguish them. (17) Whatever 'fits' and is 'justified' counts as interpretation, and whatever does not stands as invention: "The justification need not fit every aspect or feature of the standing practice, but it must fit enough for the interpreter to be able to see himself as interpreting that practice, not inventing a new one." (18)

The distinction between interpretation and invention is helpful to distinguish Dworkin from some liberals who have called the Constitution a "living" document and have said that it must be "brought up to date" to match new circumstances and sensibilities. By taking an "active" approach and by accepting John Hart Ely's characterization of their position as "noninterpretive," they seem to suggest change and reform, i.e., "inventing a new document rather than interpreting the old one." (19)

Although the distinction is enough to insulate Dworkin from the "living constitutionalists," he introduces a further qualification in the kind of interpretation that he has in mind to isolate himself from the so-called "originalists," who insist on rejecting the notion of a "living constitution" (20) by making "the contemporary Constitution too much the dead hand of the past." (21) Succinctly, interpretation has to be a "creative" judicial activity--an exercise of "constructive interpretation"--that is "interpretive," not "inventive," "legislative," and as such a form of "judicial invention or legislation." (22) In Dworkin's words: "[Constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong." (23) It is worth noting that legal interpretation, including constitutional interpretation, is by definition creative and even constructive, i.e., giving meaning and sense to a legal principle or rule. (24)

Not surprisingly, some originalists resist the idea of a "constructive interpretation," and have tried to maintain a sharp distinction between (constitutional) interpretation and (constitutional)...