On Jim Fleming's anti-originalism.

• Author: Barber, Sotirios A.
• 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).

When Jim Fleming and I completed our 2007 book, Constitutional Interpretation: The Basic Questions (CIBQ), (3) we left the interpretive debate and turned to other projects, Jim to his book with Linda McClain on ordered liberty, (4) and I to an essay on states' rights. (5) After his book with Linda, Jim returned to the interpretive wars, and now we're gathered in appreciation of his analysis and critique of the so-called new originalisms, (6) theories built on the ruins of the old originalisms. I excused myself from the debate until now because I thought that there was little to be said about constitutional interpretation that hasn't been said. I thought the debate was over, at least as an intellectual matter. I thought this because Michael S. Moore convinced me that there is a limited number of possible answers to what expressions like due process and equal protection mean; (7) answers to this question entail different approaches to constitutional meaning; and Ronald Dworkin and Moore have shown that one and only one approach to interpreting such expressions makes sense. (8) Dworkin called this approach the moral reading; Jim and I call it the philosophic approach. (9)

Our choice of "the philosophic approach," as distinguished from "the moral reading," reflected our positive view of the Constitution as a whole. Influenced by writers like Frank Michelman, Lawrence Sager, Walter Murphy, and Martin Diamond," (10) we concluded that an ends-oriented or, if you prefer, an aspirational or justice-seeking view of the Constitution, as distinguished from dominant emphases on rights and processes, was the only defensible view of the Constitution as a whole. In CIBQ, Jim and I combined the aspirational view of constitutional ends with the moral reading of constitutional rights, and called it the philosophic approach to constitutional meaning. We added a chapter on The Federalist to show how our views both on substance and interpretive approach reflected the thought of the American founding and the constitutional text. Additional chapters showed how leading writers on the other side of the issues fell short of simple coherence, not to mention fidelity to textual and historical sources, and, as far as I was concerned, that was that. There was nothing more to be said, or so I thought, and so I continue to think.

I continue to think this because whether you're talking about the meanings of drafters or ratifiers or the general public or all the world (today, yesterday, or tomorrow), the word or phrase "x" can refer either to (1) "x itself," or (2) some "definition of x itself," or (3) some "example (or application) of x itself." And since how you approach x depends on what you think you're approaching, any possible approach to the meaning of x can be reduced to one of the three approaches that Jim and I describe in CIBQ. (11)

But if there's nothing new to say about the correct approach to constitutional interpretation, there are questions to ask about the persistent recurrence of originalism. What exactly is it that keeps originalism alive? Can it define or redefine itself in a form that avoids the fatal criticisms of its original form? Can there be a nonoriginal originalism, or is the only truly nonoriginal originalism an abstract originalism that's equivalent to the philosophic approach, as Jim and I argued in 2007? Jim's new book answers these questions. He explains the reluctance of...