American Society of Comparative Law
In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as embodying abstract moral and political principles – not codifying 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. I shall argue that Dworkin’s and my conceptions of fidelity and change are superior to those of originalism in its many varieties. For our moral readings enable us to see what originalisms (besides Balkin’s) obscure or deny: that one of the main purposes of the Constitution is to exhort us to change in order to honor our aspirational principles and affirmatively to pursue good things like the ends proclaimed in the Preamble. Thus, the aspiration to fidelity requires rather than forbids change. But it does so in the name of honoring our commitments and building out our framework of constitutional self-government with coherence, integrity, and responsibility, rather than in the name of “updating” a “living” constitution. It aims for something better than preventing “rot,” as Scalia famously put it. I shall attempt to make good on these claims by arguing that moral readings help us better understand the Constitution as both a framework for change and a charter of aspirations to which we owe fidelity. They enable us to see how the multiple modalities of argument in constitutional interpretation (including original public meaning and precedent), rather than preventing change, are sites in which we argue about, and sources through which we justify, change: in particular, how best to realize and thus to be faithful to our constitutional aspirations. Or, as Dworkin put it, how to interpret the Constitution so as to make it the best it can be. In sum, my topic is fidelity without originalism and change without living constitutionalism. I also ponder the reasons for the grip of originalism in our constitutional culture as contrasted with its rejection elsewhere. I shall suggest that the reasons commonly offered in fact demonstrate the grip of the aspiration to fidelity, not the grip of originalism itself. And I shall contend that those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as redeeming the promise of our constitutional commitments, not an authoritarian originalist conception of fidelity as following the relatively specific original meaning (or original expected applications) of the Constitution.
Fidelity, Change, and the Good Constitution,
American Journal of Comparative Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/87