Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms

ISBN-13: 9780199793372 / Angielski / Twarda / 2015 / 264 str.

James E. Fleming

Opis

In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers 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. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.

Recenzje

In Fidelity to Our Imperfect Constitution, James Fleming argues persuasively against all forms of originalism: 'old time originalism,' which ties constitutional meaning to the specific and concrete applications envisioned by framers or ratifiers, 'new originalism,' which allows for the Courts to 'construct' a constitutional law as well as determine constitutional meaning, and 'living originalism' which looks for originalist meanings that are sufficiently abstract so as to accommodate contemporary decisions that are at odds with, or simply beyond the purview of the Constitution's framers. He presents in their stead a vigorous defense of a moral and philosophical approach to Constitutional meaning. The book is a welcome elucidation of neo-Dworkinian constitutional analysis, from a generous and thoughtful critic of our seeming rush to the false comfort of the authority of the Constitution's framers." Robin West Frederick Haas Professor of Law Georgetown University Law Center

O autorze

James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He authored Ordered Liberty: Rights, Responsibilities, and Virtues (2013, with Linda C. McClain); Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007, with Sotirios A. Barber); Securing Constitutional Democracy: The Case of Autonomy (2006); and American Constitutional Interpretation (5th ed., 2014, with Walter F. Murphy, Sotirios A. Barber & Stephen Macedo). He is the former Editor of Nomos, the annual book of the American Society for Political and Legal Philosophy.