A Symposium on James E. Fleming's Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms

Abstract

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

Ronald Dworkin coined the term "moral reading," 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. 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.

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.