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

Hardcover | August 28, 2015

byJames E. Fleming

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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 orabstract, 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 - notcodifying 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 thatoriginalists 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 philosophicapproach, 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.

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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 orabstract, living or dead. Instead, he defends what...

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. B...
Format:HardcoverDimensions:264 pages, 9.41 × 6.18 × 0.98 inPublished:August 28, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199793379

ISBN - 13:9780199793372

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Table of Contents

Acknowledgments1. Are We All Originalists Now? I Hope Not!Part I. The New Originalism and Its Originalist Discontents2. The New Originalist Manifesto3. Fidelity, Change, and the Good ConstitutionPart II. A Moral Reading or Philosophic Approach4. Fidelity Through a Moral Reading or Philosophic Approach5. The Place of Precedent and Common Law Constitutional InterpretationPart III. Living Originalism and Living Constitutionalism as Moral Readings6. Fidelity Through Living Originalism: Redeeming the Promises of the Constitution7. Fidelity to Our Living Constitution: Honoring the Achievements of We the PeoplePart IV. Fidelity to Our Imperfect Constitution8. Is It Time to Rewrite the Constitution? Fidelity Through Perfecting Our Imperfect ConstitutionEpilogueIndex

Editorial Reviews

"In Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms James Fleming argues persuasively against all forms of originalism. He presents in their stead a vigorous defense of a moral and philosophical approach to Constitutional meaning. The book is a welcomeelucidation 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