Law Commons^™

Fidelity To Our Imperfect Constitution: A Reply To Six Views, James E. Fleming

Faculty Scholarship

I am deeply grateful to Constitutional Commentary for publishing this symposium on my recent book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. In the book, I put forward a sustained critique of originalism-whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a "moral reading" of the U.S. Constitution' and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation.4 By "moral reading" and "philosophic approach," I refer to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or …

The Moral Reading As A Practice: A Response To Three Comments On Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

In recent years, many originalists have claimed a monopoly on concern for fidelity in constitutional interpretation. In my book, Fidelity to Our Imperfect Constitution, 1 I reject originalisms—whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. I refer 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 …

Reflections Of An Empirical Reader (Or: Could Fleming Be Right This Time?), Gary S. Lawson

Faculty Scholarship

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are …

Contingent Constitutionality, Legislative Facts, And Campaign Finance, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Meming Of Substantive Due Process, Jamal Greene

Faculty Scholarship

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …

Constitutional Bad Faith, David E. Pozen

Faculty Scholarship

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their …

Rule Originalism, Jamal Greene

Faculty Scholarship

Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its …

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that …