Abstract

FLEMING, James E.. Fidelity to our Imperfect Constitution: a Response to Five Views. Probl. anu. filos. teor. derecho [online]. 2017, n.11, pp.3-19. ISSN 2448-7937.

In my recent book, Fidelity to Our Imperfect Constitution, I put forward a sustained critique of originalism in all its forms and 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. In this essay for the UNAM symposium on the book, I reply to five thoughtful commentaries. First, as against Barber’s commentary, I justify responding to the “persistent resurgence of originalism” and attempting to “save the new originalists from themselves” by showing the extent to which many of them acknowledge the need to make moral judgments in constitutional interpretation. Second, in appreciation of Imer Flores’s commentary, I draw a distinction between being a systematic moral reader and acknowledging the need to make normative judgments in constitutional interpretation. Third, I resist Ken Kersch’s interpretation and criticism of my project as “calling the fight” for “aspirationalism” over “historicism”—I mean instead to argue for the superiority of moral readings (which combine what he calls “aspirationalism” or justification and “historicism” or fit) over originalisms. Fourth, I embrace Linda McClain’s careful analysis of originalisms versus moral readings in Obergefell v. Hodges (2015), protecting the fundamental right to marry for same-sex couples, as confirming my argument that “inclusive originalism” includes practically everything that a moral reader would be likely to argue for. Finally, in response to Lawrence Sager, I bring out the affinities between his well-known “justice-seeking” constitutional theory and my own moral reading, and I argue that both theories reflect conceptions of fidelity as honoring our aspirational principles, not simply following our historical practices in the manner of conventional originalisms.

Keywords : Constitutional interpretation; fidelity in constitutional interpretation; moral reading of a Constitution; justice-seeking constitutional theory; originalism; precedent.

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