Academic journal article Constitutional Commentary

The Document and the Drama

Academic journal article Constitutional Commentary

The Document and the Drama

Article excerpt

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

Contemporary scholarly discourse on American constitutional law is fixated on the document. Particularly when the role of the courts is examined, the fixation is associated with what is likely the most quoted sentence in Chief Justice Marshall's opinion in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." (3) Marbury also explained that the Constitution is part of American law, and so this sentence articulating a judicial "duty" seems to suggest to scholars at least that courts have to dig deep to figure out just how that entire piece of "law" can be coherently "interpreted." This fixation is perhaps apparent in the rush to embrace the label "originalism" by scholars espousing quite a variety of approaches to constitutional interpretation, including some "new" ones that disdain the force of all sorts of evidence about the "original" understanding of what the document would accomplish. The title of James Fleming's new book makes a similar embrace quite explicit: "Fidelity to Our Imperfect Constitution." Even beyond the courts, moreover, Fleming tells us in quite grand terms that the Constitution is to be understood as establishing "a framework or great outline for a self-governing people (4) (p. 20)."

There is an obvious awkwardness in this fixation with the document. Unlike scholars, federal courts emphatically refuse to grapple at large with what the Constitution is about. Thus they have long refused to issue "advisory opinions" about the Constitution (or any other elements of the law with which they deal). Instead, they interpret the document only in the service of dispute resolution, to resolve what the Constitution refers to as "cases" and "controversies." (5) And that seems to have been what Marshall had in mind as well. Immediately following the sentence quoted above, he explained why the courts have that "duty": "Those who apply the rule to particular cases, must of necessity expound and interpret that rule." (6)

Interpreting the document in resolving an ongoing succession of disputes substantially complicates the process of ascribing "meaning" to the document. Fleming is most certainly appreciative of complexity in interpreting the document. The subtitle of the book is "For Moral Readings and Against Originalisms," and he does tell us that with appropriate "moral reading" of the Constitution, it embodies "abstract moral and political principles" (p. xi). But the "moral readings" (or, as he sometimes puts it, the "philosophic approach" (pp. xi, 3)) he has in mind also draw on information other than the text and abstract moral and political principles. Instead, "fit work" must be done (p. 137). Thus under Fleming's notion of "moral reading," "the best interpretation of the Constitution should [also] fit and justify the legal materials [available to the interpreter], including the text, original meaning, and precedents" (p. 99). (7)

How to deal with precedent has roiled the originalism world, but Fleming's embrace of a role for precedent is particularly intriguing--and a bit puzzling. The usual justification advanced for following precedent is the reliance that it may have generated. (8) That justification is easy to appreciate if one thinks of constitutional interpretation in dispute resolution terms. For both parties to a dispute may at the time they interacted have had information about judicial precedents that dealt with earlier interactions bearing some similarity to the one they were contemplating. If one party may have taken note of the similarities and plausibly have relied upon the precedent, while the other party simply ignored it, that seems pretty compelling as an argument for the relying party when addressing the dispute between them, at least once--a la Fleming and most of the rest of us--a decisional role for precedent is understood as part of the process. …

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