Academic journal article Boston University Law Review

Fit, Justification, and Fidelity in Constitutional Interpretation

Academic journal article Boston University Law Review

Fit, Justification, and Fidelity in Constitutional Interpretation

Article excerpt

There is . . . a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.

-- Oliver Wendell Holmes, Jr.1

INTRODUCTION

With this event -- a Symposium on Abner Greene's Against Obligation2 and Michael Seidman's On Constitutional Disobedience3 -- we continue our Boston University Law Review series of symposia on significant recent books in law. The distinctive format is to pick two books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty members to write an essay on one or both books.

What are the justifications for pairing Greene's and Seidman's books in this series? I shall suggest three. First, as their titles indicate, the books argue respectively against constitutional obligation and for constitutional disobedience: they provocatively and creatively buck the tendencies of constitutional theorists to profess fidelity with the past in constitutional interpretation. Second, for this reason, these books are a worthy sequel to last year's symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution.4 Both books reject originalist understandings of obligation to follow original meaning in interpreting the Constitution, even of the sort associated with Balkin's abstract living originalism (which aspires to fidelity to the abstract commitments of, rather than the concrete expectations of, the founding generation).5 And indeed both reject interpretive obligation to follow precedent, even of the type illustrated by Strauss's flexible living constitutionalism.6 Greene and Seidman provide powerful arguments against views that original meaning and precedent are dispositive of constitutional meaning and decision. Each argues that we the people today should decide questions of constitutional meaning, commitment, and justice for ourselves, by our own best lights.

Third, while Greene's and Seidman's books share these similarities, they have illuminating differences. The most striking difference relates to their attitudes toward the dualist structure of our constitutional system: the two tracks of (1) the fundamental law of the Constitution and (2) the ordinary law of legislation. I do not interpret Greene as wishing to do away with the fundamental law or to "level" it to ordinary law, whereas I do interpret Seidman as aiming to do so. Rather, Greene aims to preserve the dualist structure and to elaborate the meaning of the fundamental law by giving primacy to normative argument over any obligation to follow the past.7 By contrast, Seidman wants to "level" the fundamental law of the Constitution and just have discourse about what ordinary laws we ought to adopt.8 He advocates that we should simply make all-things-considered judgments about the best thing to do.9 As he titled an op-ed piece in the New York Times: "Let's [g]ive up on the Constitution."10

In this Essay I focus on Greene's arguments against interpretive obligation to the past, in particular, his argument that even constitutional theorists like Ronald Dworkin and I give too much deference or weight to "fit" and precedent, and not enough primacy to "justification" and justice, in our approaches to constitutional interpretation.11 I should begin by observing that both Greene and I are, broadly speaking, Dworkinians, or moral readers. By that I mean that we conceive the Constitution in significant part as a scheme of abstract moral commitments, not a code of concrete historical rules. And we conceive interpretation of the Constitution as requiring judgments about what interpretation best "fits" and "justifies" the constitutional document, order, and practice. Interpretation is not a matter of discovering and enforcing historically determined answers provided by the framers and ratifiers (whether original intentions, understandings, or public meanings). …

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