Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms - Hardcover

Fleming, James E.

Hardcover

ISBN 10: 0199793379 ISBN 13: 9780199793372

Publisher: Oxford University Press, 2015

Synopsis

In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers 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, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. 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.

About this title

About the Author:

James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He authored Ordered Liberty: Rights, Responsibilities, and Virtues (2013, with Linda C. McClain); Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007, with Sotirios A. Barber); Securing Constitutional Democracy: The Case of Autonomy (2006); and American Constitutional Interpretation (5th ed., 2014, with Walter F. Murphy, Sotirios A. Barber & Stephen Macedo). He is the former Editor of Nomos, the annual book of the American Society for Political and Legal Philosophy.

Review:

"James Fleming exhorts us to recognize both the good and the bad in our nation's history, to honor the Constitution's aspirational commitments, and to realize our country's potential for a more perfect union. This remarkable book is a powerful statement of Fleming's moral reading of the Constitution and an excellent guide to contemporary constitutional theory."
--Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

"Fidelity to Our Imperfect Constitution is an impeccably fair-minded and erudite tour of modern constitutional theory. James Fleming shows that, notwithstanding its improvements over the reactionary 'old' originalism, the ostensibly 'new' originalism that has emerged in recent decades remains deeply flawed. 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." --Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell University Law School

"Fidelity to Our Imperfect Constitution surveys the landscape of contemporary American constitutional theory with critical imagination and insight. In addition to mounting forceful attacks on the 'originalist' and 'living constitutionalist' approaches that have recently dominated the field, 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 that we have, not fashioning a new one." -Richard Fallon, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School

"In Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms James Fleming argues persuasively against all forms of originalism. He presents in their stead a vigorous defense of a moral and philosophical approach to Constitutional meaning. The book is a welcome elucidation of neo-Dworkinian constitutional analysis, from a generous and thoughtful critic of our seeming rush to the false comfort of the authority of the Constitution's framers." --Robin West, Frederick Haas Professor of Law, Georgetown University Law Center

"Building on the work of Ronald Dworkin and other scholars, Fleming (Boston Univ. School of Law) challenges the intellectual honesty and practical vitality of originalism. More important, though, Fleming develops a positive case for living constitutionalism as a theory that reflects the Constitution's aspirational spirit. Recommended." -S. B. Lichtman, Shippensburg University, hoice

About this edition

• Publisher: Oxford University Press
• Publication date: 2015
• ISBN 10: 0199793379
• ISBN 13: 9780199793372
• Binding: Hardcover
• Number of pages: 264