Academic journal article Boston University Law Review

Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?) *

Academic journal article Boston University Law Review

Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?) *

Article excerpt

Jim Fleming's characteristically intriguing new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms,1 purports to set up an opposition between originalism(s) and what Fleming calls a "moral reading" of, or "philosophic approach" to interpreting, the Constitution.2 By a "moral reading" or "philosophic approach," he means reference 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."3 He offers this view as an alternative most directly to "[conventional, strong"4 originalism, which he takes to prescribe that "[t]he only legitimate source of constitutional interpretation is the relatively specific original meanings and original expected applications of the founders."5 The bane of his existence is what he calls "the originalist premise," which is

the assumption that originalism, rightly conceived, has to be the best-or indeed the only-conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things-in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation. Axiomatically.6

He styles the book "a sustained critique of originalism - whether old or new, concrete or abstract, living or dead."7

Fleming is right that the term "originalism" now describes so many different approaches that the label may obscure more than it conveys.8 I certainly do not want to be in the position of denying the label "originalist" to anyone who wants to claim it, but when I am supposedly standing shoulder to shoulder as an "originalist" with, inter alia, Bruce Ackerman, Larry Alexander, Sam Alito, Akhil Amar, Jack Balkin, Randy Barnett, Will Baude, Raoul Berger, and Robert Bork-and those are just the "As" and "Bs" that leap immediately to mind who are swept in by some currently circulating broad definitions of originalism-it is not clear that the label "originalist" is doing a lot of useful epistemological work. Accordingly, although I consider myself an originalist of sorts, rather than defend originalism here, I instead propose a somewhat different opposition in response to Fleming: empirical readings versus moral readings. Framing the issue this way reveals some very strange bedfellows and points to what I believe is a radically underdeveloped research agenda for constitutional interpretation.

By "empirical reading," I mean nothing more complex than reading the Constitution-or any communicative instrument, such as the Gettysburg Address, the Constitution of the Confederate States of America, your spouse's shopping list, or Fleming's book-for what it says. That is an empirical task because communicative meaning in a wide range of contexts is a fact to be discovered rather than something to be constructed, invented, or chosen. To discover the factual meaning of the United States Constitution, one must ascertain the original intentions of the document's author. That is the right way to discover meaning in that context. It just has to be.

So stated, this position seems to represent precisely the kind of dogmatically axiomatic, concrete-intentions-based, authoritarian originalism that Fidelity to Our Imperfect Constitution wants to stamp out. Not so fast. There is both more and less to empirical reading than meets the eye.

The subtitle of this Comment is "Could Fleming Be Right This Time?" The answer to that question is yes, and even obviously yes. But, as with "[f]orty-two" as the answer to the ultimate question of life, the universe, and everything,9 the trick is to formulate the question properly. What, exactly, is the ultimate question of meaning, interpretation, and the Constitution to which Fleming has given the right answer? …

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