Academic journal article Boston University Law Review

A Symposium on James E. Fleming's Fidelity to Our Imperfect Constitution: For Moral Readings and against Originalisms: History, Rights, and the Moral Reading

Academic journal article Boston University Law Review

A Symposium on James E. Fleming's Fidelity to Our Imperfect Constitution: For Moral Readings and against Originalisms: History, Rights, and the Moral Reading

Article excerpt


James Fleming's book, Fidelity to Our Imperfect Constitution,1 offers a moral reading of the Constitution, which he also calls a "philosophic approach" to interpretation.2 By this, Fleming means that we should view the Constitution "as embodying abstract moral and political principles."3 To interpret the Constitution, we must make "normative judgments about how [these principles should be] best understood."4 This, in turn, will require more than "merely historical research to discover relatively specific original meanings."5

Ronald Dworkin coined the term "moral reading,"6 and, not surprisingly, Dworkin's scholarship has influenced Fleming's approach. But the most important features of Fleming's book are its differences from Dworkin's account of the moral reading. Fleming offers a "big tent" approach: he argues persuasively that it is reasonable to describe many different scholars with many different methodological commitments as having a moral reading.7 Understood from Fleming's generous perspective, common law constitutionalists like David Strauss, living originalists like myself, and advocates of dualist democracy like Bruce Ackerman offer distinctive moral readings of the Constitution.8

Many constitutional scholars, Fleming acknowledges, may avoid using Dworkin's terminology because they do not want to be associated with what they regard as Dworkin's mistakes.9 Fleming responds that they need not worry. Many different kinds of scholars have "a" moral reading of the Constitution; they do not have to agree with Dworkin or even with each other.10

Fleming repeatedly advises us not to use Dworkin's body of work as the sole way to engage in a moral reading of the Constitution. Instead, scholars should feel free to use Dworkin's more abstract accounts of what a moral reading entails as a jumping-off point for their own work. As Fleming says more than once in this book, it is far more useful to consider what Dworkin says than to follow what Dworkin actually does.11

Perhaps equally important, Fleming's own version of the moral reading differs from Dworkin's in significant respects, and I will spend the rest of this essay describing some of the differences. In particular, Fleming's account differs from Dworkin's on two important questions. The first question is how moral readings of the Constitution are consistent with democratic self-government. The second question is how moral readings of the Constitution should use history.

I. The Moral Reading and Democracy

A moral reading of the Constitution must explain how the protection of fundamental rights, derived from the best available political and moral theory, is consistent with popular self-government. Dworkin attempted to solve this problem by distinguishing between a constitutional conception of democracy and a majoritarian conception of democracy.12 A majoritarian conception views democracy as the expression of majority will.13 By contrast, a constitutional conception holds that a democracy, in order to be a democracy, must always operate within a constitutional framework of structures and rights.14

This leads naturally to the question of what background conditions, structures, and rights are implicit in the concept of democratic self-government. Dworkin's scholarship, perhaps not surprisingly, tended to focus more on rights protections than on structural features. In particular, he argued that rights guarantees that ensure equal concern and respect for citizens are necessary for democratic decision-making to be legitimate.15 Under a constitutional conception of democracy, therefore, there is no conflict between rights protection and democracy. Quite the contrary: democratic legitimacy presumes and requires the protection of rights that secure equal concern and respect.

Fleming does not object to the constitutional conception of democracy, and he does not deny that the proper functioning of a democracy requires the protection of some rights. …

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