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Critical Dialogue, James E. Fleming, Bruce P. Frohnen
Critical Dialogue, James E. Fleming, Bruce P. Frohnen
Faculty Scholarship
It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …
Fidelity, Change, And The Good Constitution, James E. Fleming
Fidelity, Change, And The Good Constitution, James E. Fleming
Faculty Scholarship
In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as …
The Inclusiveness Of The New Originalism, James E. Fleming
The Inclusiveness Of The New Originalism, James E. Fleming
Faculty Scholarship
In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness …
Fit, Justification, And Fidelity In Constitutional Interpretation, James E. Fleming
Fit, Justification, And Fidelity In Constitutional Interpretation, James E. Fleming
Faculty Scholarship
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.
Are We All Originalists Now? I Hope Not!, James E. Fleming
Are We All Originalists Now? I Hope Not!, James E. Fleming
Faculty Scholarship
In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that …
Fidelity To Our Imperfect Constitution, James E. Fleming
Fidelity To Our Imperfect Constitution, James E. Fleming
Faculty Scholarship
What is the question of fidelity a question about? The topic of our Symposium, "Fidelity in Constitutional Theory," raises two fundamental questions: Fidelity to what? and What is fidelity? The short answer to the first-fidelity to the Constitution-poses a further question: What is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules? And does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second-being faithful to the Constitution in interpreting it-leads to another question: How should the Constitution be interpreted?' Does …