James Fleming (Boston University – School of Law) has posted Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (J. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, Oxford University Press, 2015) on SSRN. Here is the abstract:
In recent years, some have asked, “Are we all originalists now?” In this 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 United States Constitution or what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. 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. In the book, I argue that a moral reading or philosophic approach, as a conception of fidelity to the Constitution as written, is superior to originalism, however conceived. Furthermore, through examining the spectacular concessions that originalists have made to their critics, the book shows the extent to which all now acknowledge that constitutional interpretation requires normative judgments. I also ponder the reasons for the grip of originalism in this constitutional culture as contrasted with its rejection elsewhere. The reasons commonly offered demonstrate the grip of the aspiration to constitutional fidelity, not that of originalism itself. And those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as honoring our constitutional commitments to abstract aspirational principles, not an authoritarian originalist conception of fidelity as following the relatively specific original meanings of the founders. If we aspires to fidelity to our imperfect Constitution, we should be moral readers.
Posted at 6:05 AM