Going Nowhere: Utopian Constitutionalism in the 21st Century

James E. Fleming, an orthodox confessor in the moral-philosophic church of Ronald Dworkin, has a problem. He declares himself an avowed enemy of constitutional originalism in any form on account of the debilitating effect it has on the American public conscience. Yet Fleming contradicts himself when he defines “the originalist premise” as the “assumption that originalism, rightly conceived, has to be the best—or indeed the only—conception of constitutional interpretation.”

Why does it have to be? “Because,” writes Fleming, “originalism, rightly conceived, just has to be. By definition. In the nature of things—in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation. Axiomatically.

The italics were in the original; he might not mean it, but he has reason to say it, because a great many people not only accept the originalist premise, they also conceive of it as a proposition grounded in philosophical truth and reality. Persistent and seemingly ineradicable, the “originalist premise” poses the largest obstacle to the search-and-destroy mission Fleming undertakes on behalf of constitutional fidelity to the imperfect Constitution of the United States.

The originalist premise will not down. It insinuates itself into the minds not only of citizens, but also of liberal elite scholars and law professors. In the poetic imagery of Francis Thompson’s “hound of heaven,” Fleming feels under relentless pursuit. Considering the role that Dworkin, the late political theorist and constitutional law scholar, plays in Fleming’s narrative, a more fitting metaphor might Herman Hesse’s “Magister Ludi” (master of the game). Indeed, the mysterious abstraction in Hesse can be likened to the imaginative game-theoretical evaluations and semantic maneuvers performed by Fleming as he sets out to expunge all manifestations of originalism.

In more prosaic terms, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms is based on extensively revised articles, lectures, workshops, and conferences in which  Fleming, the Honorable Paul J. Liacos Professor of Law at Boston University School of Law, has promoted his cause. Pondering “the supposed grip of originalism” on American constitutional culture, he argues that the reasons offered for it “demonstrate the grip of the aspiration to fidelity, not the grip of originalism itself.” That Fleming believes this to be the case is understandable, but the research strategy and epistemological horizon in which this thesis is situated are questionable.

For example, it is significant that nowhere in the book is reference made to Johnathan O’Neill’s Originalism in American Law and Politics: A Constitutional History (2005). Context is the calling card of historical scholarship. To exclude O’Neill’s history from a reflection on the meaning and significance of abstract principles and moral aspirations in constitutional interpretation is a sign of scholarly irresponsibility. It confutes Fleming’s claim that a fusion of fidelity and integrity is the decisive move in Dworkin’s determination of what should count as original meaning.

As O’Neill shows, pioneering originalists such as Raoul Berger and Robert Bork won recognition, and even a measure of approval, among legal liberals for altering the assumptions and questions that define modern constitutional law. From a legal realist point of view, however, Dworkin carried the day in claiming: “there is no stubborn fact of the matter—no ‘real’ intention fixed in history independent of our opinion about proper legal or constitutional practice—against which the conceptions we construct can be tested for accuracy.”

In Fleming’s opinion, all forms of originalism—old or new, narrow or broad, innocent or beguiling—are corrupt by reason of identification with the drafting of the U.S. Constitution. From Fleming’s standpoint of reductionist idealism, the problem of how to be faithful to an imperfect constitution is a case of mistaken identity, resolvable by setting aside those words of the Constitution’s Preamble that are empty of meaning. A void is thereby created in which “fit” can be recognized and taken into account. “Fit” is a Dworkinian locution referring to contextual circumstances that accommodate the appearance, recognition, and reception of abstract principles and aspirations in such a way as to justify a fidelity that aligns with the Progressive scheme of moral-philosophic enlightenment.

The Founders’ conception of fidelity stands in fundamental distinction to the Fleming-Dworkin modality of constitutional interpretation. The former consists in the establishment of an authoritative rule-of-law and limited government constitutional order to the end of securing the natural rights and liberties of individuals constituting a free people in a republican society.

The 1787 Constitution bears the mark of legitimate and rightful authority. Under the moral-realist truth that there is no right to be wrong, the inference can be drawn that “the right has a right to be right.” In an imperfect world, a constitution of government may require amendment to rectify error or injustice. That said, to dissolve the fundamental law of the American republic into abstraction, imagination, and aspiration in the name of Progressive ideology is to corrupt constitutional authority and consign it to oblivion.

Though committed to the Dworkinian magisterium, Fleming acknowledges the possibility that the master’s interpretive modality itself may partake of imperfection. He observes, for example, that “Dworkin never developed a moral reading as a general substantive liberal theory of our Constitution and underlying constitutional democracy.” Nor did Dworkin devise a Constitution-perfecting theory to counteract process-perfecting theories intended to reject substantive liberties such as privacy, autonomy, liberty of conscience, and freedom of association.

Some legal theorists, he writes, question whether Dworkin’s moral-philosophical approach “actually constrains constitutional interpretation to be anything other than his own liberal political theory.” He concedes that Dworkin “may have aggravated such concerns” in the famous series of essays he wrote for the New York Review of Books, which have been described by Michael Greve as proof that Dworkin’s “métier was sophistry, not metaphysics.”

In what might be considered the moral of the story, Fleming advises on page 94: “Do as Dworkin says, not as he does.”

Fidelity to Our Imperfect Constitution consists of a series of didactic, dense, and erudite essays in which Fleming acts the part of good-natured master of ceremonies engaged in dialogue with like-minded legal theorists. His object is to convert doubters to the Dworkinian magisterium. His means is indoctrination in the proposition that only through redefinition and propagation of abstract principles and aspirations, in derogation of historicist originalisms, can our Constitution be made the best it can be.

Citing chapter and verse, the author putatively engages a number of constitutional interpreters, including David Strauss on common law constitutionalism, Jack Balkin on living constitutionalism and new originalism, Bruce Ackerman on informal historicist living originalism, Lawrence B. Solum and Keith Whittington on new originalism, and John McGinnis and Michael Rappaport on neoconservative Berger and Bork originalism. Fleming offers criticism and advice on how to revise interpretations so as to form an intellectual-academic united front against all originalisms, and for Dworkinian moral-philosophic reading. This is the path of enlightenment that will make the Constitution truly worthy of our fidelity.

Fleming is cheerfully optimistic about his mission. Nevertheless, he is perplexed that many liberal and Progressive theorists approach interpretation on broad originalist grounds rather than on abstract and aspirational moral-philosophic grounds a la Dworkin. For example, Ackerman, a historically-minded political scientist, claims constitutional amendment legitimacy outside of Article V formalism. For Fleming, this move constitutes a “living constitution” challenge. He observes: “In sum, we have a constitutional war going on.” What Ackerman thinks We the People have repudiated, neoconservative originalists “think We the Judges have an obligation to restore. And so it goes on and on, without end.”

By the author’s lights, Ackerman’s interpretation shows that “even some critics of originalism are in the grip of the ‘originalist premise’”; nevertheless he ends up claiming that “Ackerman’s living constitutionalism is illuminatingly understood as a moral reading of the Constitution (in a general sense), not merely a historicist account of our constitutional development.” Fleming believes that “No middle way exists between narrow originalism and a moral reading or philosophic approach.”  He reassuringly professes that “an ideal Constitution” will issue in: direct-popular-vote democracy; an anti-caste principle discerned in the Equal Protection Clause; and “equal participation and an equal voice in the political process” as a precondition of a republican form of government.

In what may charitably be described as a case of mistaken identity, Fleming writes: “I, like [Chief Justice John] Marshall, conceive the Constitution as a charter of abstract principles and ends, not a code of detailed rules or a deposit of historical practices.” The author is confident that a constitutional convention is not necessary. Instead, “rewriting the constitutional culture” can be a means for inculcating the “civic virtues and capacities necessary for successful constitutional self-government.”

Another resource in Fleming’s fidelity project is Walter F. Murphy’s “idea of constitutional interpretation as constitutional maintenance.” Professor Murphy’s idea “fosters a salutary concern for furthering the purposes of the constitutional order instead of being focused in a backward-looking way on interpreting narrowly conceived clauses in isolation or on taking a litigation-oriented perspective.”

Fleming hits pay dirt in defending anti-originalism against a secondary school teacher who protested to him: “But, Jim, you’ve got to understand that originalism is a Platonic noble lie.” In a long-winded reply, Fleming concedes that while “many citizens, scholars, and judges have come to believe in the noble lie of originalism,” he stands by his conviction that “originalism is at bottom authoritarian, an insult to the founders for their arrogance and an insult to us for our subservience.”

Unable to extricate himself from the intentionalist toils of historical reality, he asserts that “originalism is a double insult to the founders because at no point in the constitution that they left for us or in the literature of its adoption did any of them ever claim either infallibility or an interest in imposing their will on their posterity.” In other words, for them, original intent was to foreswear any claim of infallibility.

What Fleming is trying to say is that originalism in any form functions as an unwanted limitation on future generations—that it imposes a kind of gag rule that will obstruct the morally correct nostrums that Fleming and his compatriots believe will make the imperfect U.S. Constitution worthy of fidelity. He concludes his treatise on the high ground of judicial fidelity to abstract moral-philosophic principles and aspirations as evinced by Justice Anthony Kennedy in Lawrence v. Texas (2003) and Justices Kennedy, Sandra Day O’Connor, and David Souter in Casey v. Planned Parenthood of Pennsylvania (1992).

The author is confident that originalism is a thing of the past from which nothing good can come. The future belongs to the living, under the wise ministrations of liberal Progressive reform. Nonetheless, since the future has not been disclosed, it is pertinent to consider whether abstractive-aspirational constitutionalism is soundly conceived in philosophical or metaphysical terms. Is felicity-inspiring constitutionalism ontologically predicated on reality, truth, justice, and right? Or does Fleming’s amalgam of idealism, pragmatism, and existentialism portend moral and cultural decline?

For reflection on this issue, it is helpful to consult a 1986 volume entitled American Constitutional Interpretation whose coauthors are the above-mentioned Professor Murphy, James E. Fleming, and William F. Harris II.[1] The question to be considered, from a historical perspective, is the original intent, if you will, of Professor Murphy’s landmark treatise contained in that work.

In a section given the heading, “What is the Constitution? Problems of Continuity and Change,” Murphy and company advise that “Language evolves . . . Defenders of informal constitutional change reason that notions prevalent in one should not forever limit the reach of broad, constitutional concepts like equal protection.” They go on to say that “those who advocate change through judicial interpretation respond that almost all interpretation, including a quest for the ‘intent of the framers,’ is creative,” and that “those who accept current authority to adapt the Constitution commonly see ‘the Constitution’ as including much more than the document.”

The “defenders of informal constitutional change” tend to:

conceive of “the Constitution” as more than a concise and precise code and to look to constitutional interpretation as an effort, always struggling and often unsuccessful, to discover and apply imperfectly stated general principles to complex problems. Because they . . . visualize “the Constitution” as something more than the document, and because they accept human fallibility, changing the Constitution by interpretation is not especially bothersome to such people.

For those who believe the Constitution “commit[s] the nation to a vision of the good—or at least, better—society, interpretation is a creative and difficult art. One needs a subtle ‘constitutional aesthetic’ to say when creativity is necessary and how to use and apply it.” Such interpretation requires “discovering the Constitution’s spirit, its underlying values, and then recomposing its aspirations.” Interpretation “demands also faithful but imaginative adherence to that spirit, to the basic values that spawn its hopes for the good life.” Furthermore, those “who take an aspirational view of the Constitution claim to be more faithful to the text than those who see the Constitution as blue print.”

The bottom line in Professor Murphy’s interpretive modality is that “almost all interpretation, including a quest for the ‘intent of the framers,’ is creative.” Constitutional principles may be “permanent,” but “‘adaptation of principles’ is often also a creative act.”

Reviewing American Constitutional Interpretation in the Duke Law Journal, H. Jefferson Powell observed that under the influence of legal realism, the 1970s and 1980s were an “Era of Big Theory.” Most theorists shared “a crucial presupposition”: that the Constitution does not have “a meaning independent of what anyone in particular might want it to mean.” Although this fact was rarely admitted and “few would follow it to its nihilistic conclusion,” the presupposition was nevertheless there. The role of constitutional theory became, in Powell’s words, “one of filling the awkward conceptual gap created by the disappearance of an objective Constitution.”[2]

One solution to this problem, noted Powell, would be to follow a jurisprudence of original intent whereby the interpreter’s role is “to obey a speculative reconstruction of political principles the framers wanted enforced but perversely or incompetently failed to put into the text itself.” Another approach would be to declare the real constitution to be the system of human rights required by some extraconstitutional political theory.

Fleming’s constitutional fidelity project has followed the path laid out in that 1986 book, and in the moral-philosophic interpretive canon advocated by Dworkin, who declared, in his 1977 book Taking Rights Seriously (in a passage excerpted in American Constitutional Interpretation):

Constitutional law can make no genuine advance until it isolates the problem of rights against the states and makes that problem part of its own agenda. That argues for a fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place.

Or as Professor Murphy formulated it:

What systematic, defensible constitutional interpretation must have is a general scheme in which to arrange these fundamental rights and the values they reflect so that choices among them may be principled rather than ad hoc. To discover, or perhaps to construct, such a hierarchy requires a broad sort of structural analysis, one that includes but goes beyond the words of the constitutional document. Perhaps it requires, as much of constitutional interpretation does, the discovery, construction, or reconstruction of a complex political philosophy.

Or, as a student of Professor Murphy’s once said of him, “In his hands, the Constitution and the Supreme Court became magical and wondrous subjects.”

The present volume, too, expresses the vaulting spirit of Progressive aspirationalism. Constitutions, however, are not intended for flying into the wild blue yonder in search of utopia. To the extent that Fleming’s fidelity project gets off the ground, its intentionality, considered from a phenomenological point of view, will be to corrupt the principles, institutions, customs, and manners on which responsible liberty and limited government in free republican society depends.

The purpose of a good constitution is to establish the foundation for authoritative and binding rule of law. The intent of the constitution-maker is of paramount significance. In the end, the practical question is whether the original intent is good or bad, felicitous or unpropitious, effective or dysfunctional, encouraging or disheartening. Believing that the Dworkinian magisterium points the way to moral enlightenment, James Fleming invites his fellow citizens to glimpse for themselves the majesty of moral integrity. It would be irresponsible to ignore Fleming’s Progressive promise, but I would not want to bet on it.

[1] Walter F. Murphy, James E. Fleming, and William F. Harris II, American Constitutional Interpretation (Mineola, New York: The Foundation Press, 1986), pp. 127, 128, and 129.

[2] Ibid., p. 291.

[3] H. Jefferson Powell, “Constitutional Law as Though the Constitution Mattered,” Duke Law Journal 35 (1986), 915.