Boston University School of Law
Ronald Dworkin famously argued that the best interpretation of a Constitution should both fit and justify the legal materials, for example, the text, original meaning, and precedents. In his recent book, Against Obligation (Harvard University Press, 2012), Abner S. Greene provocatively and creatively bucks the tendencies of constitutional theorists to profess fidelity with the past in constitutional interpretation. He rejects originalist understandings of obligation to follow original meaning in interpreting the Constitution. And indeed he rejects interpretive obligation to follow precedent. In this Essay I focus on Greene’s arguments against interpretive obligation to the past, in particular, his argument that even constitutional theorists like Dworkin and I give too much deference or weight to ‘fit’ and precedent, and not enough primacy to ‘justification’ and justice, in our approaches to constitutional interpretation. This Essay is part of my book in progress entitled Fidelity to Our Imperfect Constitution, which will criticize all forms of originalism, and it will further develop my arguments in previous books for what Dworkin called a ‘moral reading’ of the Constitution and what I have called a ‘Constitution-perfecting theory’ that would interpret the Constitution so as to make it the best it can be. In the Essay, I argue that taking fit seriously does not entail a commitment to interpretive obligation to follow the past, whether concrete original meaning or precedent. I also argue that taking fidelity seriously does not entail such a commitment. Fidelity, rather, is an attitude of commitment to making the scheme work and to further developing it, building it out over time in ways to better realize its ends and our aspirations: to make the Constitution the best it can be. Finally, as against Greene’s argument that justification has primacy over fit in constitutional interpretation, I argue instead that fit and justification are co-original and of equal weight: both stem from the basic aim of developing the best interpretation.
James E. Fleming,
Fit, Justification, and Fidelity in Constitutional Interpretation
Boston University School of Law, Public Law Research Paper
Available at: https://scholarship.law.bu.edu/faculty_scholarship/84