Fidelity to Our Imperfect Constitution

Why Moral Readings are Superior to Originalisms

James E. Fleming
Under contract with Oxford University Press

Table of Contents

Chapter 1. Are We All Originalists Now? I Hope Not!

Part I. The New Originalism and Its Originalist Discontents

Chapter 2. The New Originalist Manifesto

50

Chapter 3. Fidelity, Change, and the Good Constitution

92

Part II. A Moral Reading or Philosophic Approach

Chapter 4. Fidelity Through a Moral Reading or Philosophic Approach

129

Chapter 5. The Place of Precedent and Common Law Constitutional Interpretation

177

Part III. Living Originalism and Living Constitutionalism as Moral Readings

Chapter 6. Fidelity Through Living Originalism: Redeeming the Promises of the Constitution

218

Chapter 7. Fidelity to Our Living Constitution: Honoring the Achievements of We the People

248

Part IV. Fidelity to Our Imperfect Constitution

Chapter 8. Is It Time to Rewrite the Constitution? Fidelity Through Perfecting Our Imperfect
Constitution

Epilogue

283

324

If courts try to be faithful to the text of the Constitution, they will for that very reason be forced
to decide between competing conceptions of political morality.
Ronald Dworkin

[The Constitutions] not a living document. Its dead, dead, dead.

Justice Antonin Scalia

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CHAPTER ONE
Are We All Originalists Now? I Hope Not!
In recent years, some have asked: Are we all originalists now? My response is: I hope
not! By contrast, others have replied: We are all originalists now. 1 The answer to the question
depends on whether we define originalism narrowly or broadly. Conventional, strong originalists
have defined it exclusively: the only legitimate source of constitutional interpretation is the
relatively specific original meanings and expectations of the historical framers and ratifiers. 2 In
Is Originalism the Law?, Will Baude put forward the most inclusive originalism yet: his
ultimate originalism embraces the familiar sources and modalities of constitutional
interpretation excluded by the strong originalists as incompatible with originalism: precedent,
practice, policy, purpose, evolving abstract principles, and the like. 3 It is such a big tent that it
includes practically every constitutional scholar and judgeexcept Michael Seidman, who
argues that we should give up on the Constitution and practice constitutional disobedience. 4
Indeed, after my research assistant Mike DiMaio read Baudes article, he wrote me an urgent
email: I hate to break the bad news to you, but you are now an originalist! I shall argue,
however, that it is trivial to say that we are all originalists now in the sense of Baudes ultimate
originalism. His project, like that of many originalists, reflects the following rhetorical strategy:
concede everything important to the critics of originalism, incorporate those concessions into
your formulation of originalism, and then declare victory over the critics!
I. THE BALKANIZATION AND THE BALKINIZATION OF ORIGINALISM
I shall begin by relating Baudes capacious ultimate originalism to what I shall call the
Balkanization of originalism and the Balkinization of originalism. The Balkanization of
originalism is what happens when originalism splits into warring camps. The Balkinization of

2
originalism is what happens when originalism becomes so inclusive that even Yale law professor
Jack Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist. 5
In Originalism: The Lesser Evil, Justice Scalia argues as if the originalists are united in
their conception of constitutional interpretation and asserts that they are opposed by a motley
group that he dubs the nonoriginalists. He claims that the only thing that nonoriginalists can
agree upon is their rejection of originalism. He adds, invoking a maxim of electoral politics,
You cant beat somebody with nobody, suggesting that there really is not a viable alternative
to originalism. 6
I want to turn this assertion around and observe that there are numerous competing
varieties of originalism, and that the only thing they agree upon is their rejection of living
constitutionalism and moral readings of the Constitution. It all began with conventional
intention-of-the-framers originalism. 7 Then came intention-of-the-ratifiers originalism. 8 Of
course, we also have original-expected-applications originalism (what I elsewhere have called
narrow or concrete originalism). 9 Then came original-meaning originalism, which was
refined as original-public-meaning originalism (officially, this is now the position of Justice
Scalia). 10 Justice Scalia himself distinguished strong-medicine or bitter-pill originalism from
his own faint-hearted originalism, which he now says he has repudiated. 11 Then came broad
originalism (advocated by Lawrence Lessig and many others). 12 That was followed by the new
originalism (so characterized by Keith Whittington, Lawrence Solum, and Randy Barnett) as
distinguished from the old originalism. 13 We also must add abstract originalism (which
some, including Whittington, have attributed to Ronald Dworkin). 14 And we must not forget
Balkins method of text and principle, a form of abstract living originalism. 15 These varieties
of new, abstract, and living originalism have provoked vigorous counterpoints within

3
originalism, including John McGinnis and Michael Rappaports original-methods
originalism 16 and calls to revive the old time originalism. 17 Now we must add Baudes aptly
titled ultimate originalism. Indeed, Mitchell Berman distinguished seventy-two varieties of
originalism in his tour de force Originalism Is Bunk. 18
This brings me to my second point, about the Balkinization of originalism. Again, thats
what happens when originalism becomes so inclusive that even Balkin, hitherto a pragmatic
living constitutionalist, becomes an originalist. But if we define originalism so inclusivelyand
we are all now in this big tentit may not be very useful to say that we are all originalists now.
We may obscure our differences more than elucidate common ground. We would persist in most
of our theoretical disagreements about the best approach to constitutional interpretation in
general or the best approach in particular casesit is just that we would say that the
disagreements are among varieties of so-called originalism. And the debates concerning
interpretation, thus recast or translated, would go on much as before.
Given the Balkanization of originalismand how much these versions of originalism
differtogether with the Balkinization of originalismand how inclusive these conceptions of
originalism areit would not mean much to claim that we are all originalists now. In this book, I
reject all forms of originalism, old or new, concrete or abstract, living or dead. Instead, I defend
what Ronald Dworkin called a moral reading of the Constitution and what Sotirios A. Barber and
I have called a philosophic approach to constitutional interpretation. 19 By moral reading and
philosophic approach, I refer to conceptions of the Constitution as embodying abstract moral
and political principlesnot codifying concrete historical rules or practicesand of
interpretation of those principles as requiring normative judgments about how they are best
understoodnot merely historical research to discover relatively specific original meanings. I

4
argue that a moral reading or philosophic approach, not any version of originalism or living
constitutionalism, is the most faithful to the Constitutions commitments. Through examining the
spectacular concessions that originalists have made to their critics, I shall show the extent to
which we are all moral readers now. What is more, I shall suggest that the only thing originalists
agree upon is that originalismwhatever it is, and we cant agree on thatis the right approach.
II. THE INCLUSIVENESS OF NEW ORIGINALISMS
What is the new originalism? Who are the new originalists? And what is new about their
originalism? 20 These questions presuppose three prior questions: What is the old originalism?
Who are the old originalists? And why have many constitutional scholars and jurists sought to
move beyond the old originalism to new originalisms?
What? The old originalism is an isma conservative ideology that emerged in reaction to
the Warren Court (and early Burger Court). Before Richard Nixon and Robert Bork launched
their attacks on the Court, originalism as we now know it did not exist. Constitutional
interpretation in light of original understanding 21 did exist, but original understanding was seen
as merely one source of constitutional decision making among severalnot as a general theory
of constitutional interpretation, much less the exclusive legitimate theory. The old originalists
conceive original understanding in terms of concrete intentions of the framers or their original
expected applications (as distinguished from their abstract intentions). 22 Accordingly, these
originalists argue that fidelity in constitutional interpretation requires following the rules laid
down by, or giving effect to the relatively specific original understanding of, the framers. And,
they argue that these concrete intentions or original expected applications are determinative
concerning constitutional doctrine and decision in particular cases. 23

5
Who? The old originalists include, most prominently, Bork and Raoul Berger. 24 Why?
The old originalism is vulnerable to dispositive criticisms. In his book, Constitutional
Interpretation, Whittington has forthrightly addressed many of these criticisms, for example, that
the old originalism is circular, question begging, and axiomatic. 25 Likewise, in the book,
Constitutional Originalism: A Debate, Solum has acknowledged the shortcomings of the old
originalism. 26 I would argue that the old originalism suffers from three incorrigible flaws: (1) the
moral burden of the old originalism with regard to both rights and powers: its concrete
intentionalism entails that Brown v. Board of Education was wrongly decided 27 and that most of
the modern federal government is unconstitutional; (2) the authoritarianism of the old
originalism is a massive insult to the dignity of both the founders and usit attributes arrogance
to the authors of the norms of the Constitution and subservience to the subjects of those norms
(to add further insult, its proponents serve it up to us in the name of democracy!); and (3) its
concrete intentionalism is untenable as a theory of interpretation of our Constitution, which
establishes a charter of abstract aspirational principles and ends and an outline of general powers,
not a code of detailed rules.
I shall sketch several available varieties of new originalism. My sketch of new
originalisms will be broader and less programmatic than the accounts of the new originalism
advanced by Whittington and Solum. 28 Many self-styled originalists are at pains to differentiate
themselves from exclusivist old originalists like Berger and to insist that their versions of
originalism are not vulnerable to common criticisms of the old originalism. There is an argument
that even Scalia is a new originalist. In Originalism: The Lesser Evil, Scalia rejects strong
medicine originalism, which he associates with Berger: roughly, originalism that is prepared to
swallow the bitter pill of following whatever historical research shows to be the concrete

6
framers intention, even if, for example, it entails that Brown was wrongly decided. (The
argument is that, since the Congress that proposed the Equal Protection Clause of the Fourteenth
Amendment also provided for segregated public schooling in the District of Columbia, it could
not have been the intention of the framers or original meaning of the Clause to forbid segregated
public schooling.) Instead, he calls himself a fainted-hearted originalist (surprising as that label
may sound coming from his mouth!): originalism with a dose of evolutionary intent to the
Constitution, or a trace of constitutional perfectionism, 29 for example, Brown was rightly
decided. Furthermore, Scalia has supplemented originalism with his understanding that the
Constitution includes certain traditions, understood as specific historical practices as
distinguished from abstract aspirational principles. 30 Thus, Bork charged that Scalia is a
conservative constitutional revisionist, i.e., a new originalist. 31 Scalia also has adulterate[d]
originalism by making a pragmatic exception to accommodate some precedents that are
inconsistent with his view of the original public meaning. 32 Officially, Scalia accepts original
public meaning as opposed to intention of the framers as the authoritative source. 33 In this
respect, he comes within what Solum characterizes as the new originalism. 34 But Scalia rejects
Solums interpretation-construction distinctionviewing what Solum conceives as construction
as beyond the pale of originalist interpretation. 35 In this respect, he differs importantly from
Solums conception of the new originalism. 36 (Scalia subsequently said he has repudiated fainthearted originalism. 37)
Whittington certainly qualifies as a new originalist. Before reading Whittingtons article
on The New Originalism, I had thought that the new, improved originalists would be scholars
and jurists who seek to reconstruct originalism to correct the theoretical flaws of the old
originalism, or at least to bolster it against powerful criticisms. But Whittington, with startling

7
and refreshing frankness, provides a rather different account: He says that the new originalists
are conservatives in power, whereas the old originalists were conservatives in the minority! His
account of the old originalism is quite similar to mine: It emerged as a conservative reaction
against the Warren Court, and was mostly negative and critical of Warren Court decisions like
Griswold v. Connecticut, recognizing a right of privacy, and early Burger Court decisions like
Roe v. Wade, recognizing the right of a woman to decide whether to terminate a pregnancy. Once
conservatives gained power and a majority on the Supreme Court, Whittington says, originalists
needed to move from being largely reactive and critical to developing a governing philosophy
appropriate to guide majority opinions and not just fill dissents. 38 Enter the new originalism.
As a governing conservative constitutional theory, Whittington suggests, the new
originalism is less likely to emphasize a primary commitment to judicial restraint, the leading
aim of the old originalism. Indeed. First, there seems to be less emphasis on the capacity of
originalism to limit the discretion of the judge. Second, there is also a loosening of the
connection between originalism and judicial deference to legislative majorities. Instead, [t]he
primary virtue claimed by the new originalism is one of constitutional fidelity, not of judicial
restraint or democratic majoritarianism. In sum, he argues, the new originalism does not
require judges to get out of the way of legislatures. It requires judges to uphold the original
Constitutionnothing more, but also nothing less. 39 Now, I have always known thisthat
originalism is not fundamentally a theory of judicial restraint or democratic majoritarianism
but rather a program for pursuing fidelity to the Constitution as originalists conceive it. Still, its
good to hear it proclaimed by a thoughtful originalist!
Solums account of the old originalism is similar to Whittingtons. And their accounts of
the new originalism are similar in two respects. Solums new originalism, like Whittingtons,

8
stresses: (1) original public meaning (as contrasted with the old originalists emphasis on the
intention of the framers or their original expected applications) and (2) the significance of the
distinction between interpretation and construction (as contrasted with the old originalists
rejection of construction as illegitimate). 40
But Solums new originalism is significantly different. Whittington developed his new
originalism to replace the old originalists negative reaction against the liberal Warren Court
with a governing constitutional theory for conservative judges in power. Solum, by contrast,
developed his new originalism to overcome the theoretical errors and excesses not only of the
old originalists but also of Legal Realism and Critical Legal Studies. In fact, he wants to
acknowledge the conservative ideology of the old originalists but to distance that from the new
originalism, which he views not as ideology but as a constitutional theory. 41
New originalists surely also include the broad originalists, for example, Lawrence
Lessig, Akhil Amar, and Bruce Ackerman. 42 These scholars do not necessarily identify with or
come within what Whittington and Solum call the new originalism, but they nonetheless
profess to develop or are identified with broad originalisms. They are liberals who want to
reclaim history from the narrow originalists. They believe that liberals and progressives ignored
or neglected history for so long that they practically ceded it to conservatives. 43 The broad
originalists undertake the turn to history to show that their constitutional theories, aspirations,
and ideals are firmly rooted in our constitutional history and practice, and indeed provide a better
account of our constitutional text and tradition than do those of the conservative narrow
originalists. In general, what is broad about their forms of originalism is that these theorists
conceive original understanding or original meaning (to which they argue fidelity is owed) at a
considerably higher level of abstraction than do the narrow originalists like Bork and Scalia (to

9
say nothing of Whittington). At the same time, they typically argue that the quest for fidelity in
constitutional interpretation requires that we reject abstract theories like Dworkins moral
reading of the Constitution.
Balkins abstract living originalism certainly counts as a variety of new originalism.
Like Solum, Balkin stresses original public meaning and the significance of the distinction
between interpretation and construction. Like the broad originalists, he argues that the original
public meaning of the Constitution to which fidelity is owed is not only rules but also general
standards and abstract principles. And he, like Dworkin and me, rejects efforts by originalists to
recast abstract principles as if they were rules (or terms of art) by interpreting them as being
exhausted by their original expected applications. In short, he argues that fidelity to original
public meaning entails fidelity to our abstract framework and commitments. 44 In Chapter 6, I
shall argue that Balkins abstract living originalism has close affinities to a moral reading.
Finally, Whittington even interpreted Dworkin as a new originalist. 45 After all, Dworkin
professed fidelity to original meaning, conceived as abstract moral principles rather than
particular historical conceptions. 46 Similarly, Amy Gutmann portrayed Dworkin as an abstract
originalist in her introduction to A Matter of Interpretation, the book publishing Scalias Tanner
Lectures at Princeton together with the commentaries upon them, including Dworkins. 47 I would
resist characterizing Dworkin as a new originalist, for doing so seems to presuppose that anyone
who argues that she or he has the best constitutional theoryof what the Constitution is, what is
interpretation, and what is fidelity in interpreting the Constitutionis claiming thereby to be an
originalist.
If all of the above are new originalists, new originalism is truly inclusive. It is a [f]amily
of theories, 48 not one unified view.

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III. THE ORIGINALIST PREMISE
As I mentioned earlier, some have posed the question: Are we all originalists now? If
anything would prompt that question, it would be Dworkin and Balkin articulating their theories
as forms of originalism (or, at any rate, being interpreted as originalists). For they are exemplars
of two btes noires of originalism as conventionally understood: namely, a moral reading of the
Constitution and a pragmatic, living constitutionalism, respectively.
But there is a trick in the question Are we all originalists now? Even to pose the
question suggests that one is presupposing what I shall call the originalist premise. To answer
the question affirmatively certainly shows that one is presupposing it. The originalist premise is
the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of
fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism,
rightly conceived, has to be the bestor indeed the onlyconception of constitutional
interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In
the nature of thingsin 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 originalist premise is expressed in its most extreme form by Bork, who asserted that
originalism is the only possible approach to constitutional interpretation that is faithful to the
historic Constitution. He rejected all other approaches, most especially those like Dworkins, as
revisionist. 49 In recent years, the originalist premise has also been manifested in the strain of
broad originalism in liberal and progressive constitutional theory. For example, Lessig evidently
takes the view that originalism, by definition, is the only method of fidelity. Most strikingly, he
made the Borkish assertion that Dworkin is an infidel, and he and Cass Sunstein suggested that
Dworkin does not even have a method of fidelity. 50 I believe that the originalist premise drives

11
the broad originalists resistance to Dworkin's moral reading. We also see the originalist premise
illustrated more innocuously in the inclusiveness of the new originalism as programmatically
developed by Solum. The moment a moral reader like Dworkin or me acknowledges that original
public meaning is a factor in constitutional interpretation, and professes an aspiration to fidelity
in constitutional interpretation, Solum welcomes her or him into the big tent of the new
originalism. 51
A. A Pop Quiz on Originalism
What troubles me most is that raising the question Are we all originalists now? may
presuppose that we all have come around to Scalias and Borks way of thinking, without
conceding that many versions of originalism themselves are moving targets that have moved
considerably toward the positions of their critics. To illustrate, lets have a pop quiz. Read the
following passage:
In short, all that a judge committed to original understanding requires is that the
text, structure, and history of the Constitution provide him not with a conclusion
but with a major premise. That major premise is a principle or stated value that
the ratifiers wanted to protect against hostile legislation or executive action. The
judge must then see whether that principle or value is threatened by the statute or
action challenged in the case before him. The answer to that question provides his
minor premise, and the conclusion follows. It does not follow without difficulty,
and two judges equally devoted to the original purpose may disagree about the
reach or application of the principle at stake and so arrive at different results, but
that in no way distinguishes the task from the difficulties of applying any other
legal writing.

12
Who wrote the passage? Choose from the following:
1.

Antonin Scalia (during his faint-hearted originalist phase)

2.

Ronald Dworkin (proponent of a moral reading of the Constitution)

3.

Robert Bork (an old originalist)

4.

Will Baude (an ultimate originalist)

5.

Jack Balkin (a living originalist)

The correct answer: Robert Bork! 52 I bet that at least some readers got the answer wrong.
And I bet that some thought the correct answer might be any of these choices besides Bork. The
passage suggests that, whether or not Bork would have admitted it, he made spectacular
concessions to critics of originalism like Dworkin. For example, notice how abstractly he
conceives original understanding (note his reference to principle or value). And notice how open
to judgment he acknowledges interpretation to be (it does not sound like interpretation is simply
a matter of discovering historical facts that are dispositive, as opposed to elaborating abstract
principles or values). Finally, notice how slippery he is in moving from original understanding to
original purpose (after already moving, off stage, from intention of the framers to original
understanding of the ratifiers).
As I shall show in Chapter 2, the new originalists are more open about the concessions
they have made to critics of the old originalism. In particular, Solum acknowledges that the
relevant original public meaning of certain provisions is abstract. 53 And he admits that
construction, as distinguished from interpretation, lies beyond originalism 54 and may involve
choices of political theory. Balkins new originalism puts such concessions at the heart of his
abstract, living originalism, which I argue (in Chapter 6) is a moral reading.
Thus, I ask, are we all moral readers now?

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B. Assumptions Undergirding the Originalist Premise
Next, I want to sketch some problematic assumptions and misconceptions that undergird
or drive the originalist premise (which in turn underlie the view that we are all originalists now).
First, I shall label these assumptions or misconceptions through formulating them as inequations
(if that is a word). In the following formulations, I use to mean is not the same as, or to mean
that a commitment to X does not entail a commitment to originalism. Proponents of originalism,
and people who are caught in the grip of the originalist premise, commonly make these
assumptions or hold these misconceptions. That is, they assume or assert that a commitment to X
does entail a commitment to originalism.
1.

Original meaning originalism

2.

Fidelity in constitutional interpretation originalism

3.

Interpretation originalism

4.

The classical, interpretive justification of judicial review originalism

5.

Originalism the law

In this book, I plan to ponder fully the reasons for the grip of the originalist premiseand these
assumptions or misconceptionson the imaginations of constitutional theorists and judges.
Please dont tell me it is because the best conception of fidelity just has to be some form of
originalism! Here I shall briefly explicate and criticize these assumptions or misconceptions,
illustrating them as manifested in Borks, Scalias, Whittingtons, and Baudes work.
1. Original Meaning Originalism. Originalists like Scalia commonly say that the
originalists are the only ones who care about original meaning, and that all those other folksthe
nonoriginalistsdont. 55 That is, Scalia asserts or assumes that originalism = original
meaning. But, as Dworkin ably and tirelessly pointed out, the disagreement between originalists

14
and their critics is not about whether original meaning should count in constitutional
interpretationrather, the debate is about what should count as original meaning. 56 For
example, should we conceive original meaning quite concretely (as Scalia and Bork do)as
relatively specific original meanings, as concrete expected applications, as a deposit of concrete
historical practices and detailed rules? Or should we conceive original meaning more abstractly
(as Dworkin, Balkin, and Justice William Brennan do)as relatively abstract commitments, as a
framework or charter of abstract aspirational principles? Both sides claim or aim for fidelity to
the relevant original meaning as they conceive it. 57 The latter theorists argue that we can take
original meaning seriouslybe faithful to itwithout being originalists in the conventional
strong, exclusive sense. Originalism reflects a particular conception of what should count as
original meaning (or a family of such conceptions), and a highly controversial and problematic
one at that. Thus, a commitment to honoring original meaning does not necessarily entail a
commitment to originalism. In fact, I argue (with Dworkin and Balkin), the best conception of
the relevant original meaning of many of the most significant provisions of the Constitution is
that of abstract aspirational principles.
Furthermore, we should distinguish between (1) the theory of originalism and (2) the
practice of generic consideration of original meaning in interpreting the Constitution.
Originalism is an ism, a particular theory of constitutional interpretation holding that the
relatively concrete original meaning of the Constitution is the only legitimate source of
constitutional interpretation. (Though originalists like Scalia typically make a pragmatic
exception for sources like precedent. 58) By contrast, generic consideration of original meaning
takes an eclectic approach and regards it as one among several available sources of constitutional
interpretation: These sources include the documents text, history, structure, and purposes, as

15
well as judicial precedent. They also include contemporary social practices, evolving public
understandings of the Constitutions values, and the societal consequences of any given
interpretation. 59 We often see courts look to original meaning in this latter sense. When doing
so, courts typically have a pragmatic attitude, sometimes finding evidence of original meaning
helpful, but often finding it inconclusive. This generic, eclectic consideration of original meaning
as one among several available sources of constitutional interpretation is not what we mean by
originalism.
2. Fidelity in Constitutional Interpretation Originalism. Narrow originalists such as
Bork and Scalia have asserted a monopoly on concern for fidelity in constitutional interpretation,
claiming that fidelity requires following the rules laid down by, or giving effect to the relatively
specific original meaning of, the framers and ratifiers of the Constitution. Bork and Scalia say
that the originalists are the ones who care about fidelity in constitutional interpretation, and that
all those other folksthe revisionists and nonoriginalistsdont. 60 I co-organized a
Symposium on Fidelity in Constitutional Theory at Fordham University School of Law that
implicitly challenged the narrow originalists claim to a monopoly on fidelity, for it featured
several competing conceptions of fidelity: (1) Dworkins understanding of fidelity as pursuing
integrity with the moral reading of the Constitution; 61 (2) Ackermans understanding of fidelity
as synthesis of constitutional moments; 62 (3) Lessigs understanding of fidelity as translation
across generations; 63 (4) Jack Rakoves understanding of fidelity as keeping faith with the
founders vision; 64 and (5) an early formulation of Balkins conception that ultimately became
his method of text and principle with its argument for fidelity to abstract original public
meaning. 65

16
Most pointedly, Dworkin sought to turn the tables on the narrow originalists like Bork
and Scalia: he argued that commitment to fidelity (understood as pursuing integrity with the
moral reading of the Constitution) entails the very approach that they are at pains to insist it
forbids, and prohibits the very approach that they imperiously maintain it mandates. 66 Ackerman,
Lessig, and Balkin have taken a different tack, attempting to beat narrow originalists at their own
game: they advance fidelity as synthesis, fidelity as translation, and the method of text and
principle as broad forms of originalism that are superior, as conceptions of originalism, to narrow
originalism.
And so, again, originalism reflects a particular conception of fidelity in constitutional
interpretation, and a deeply problematic one at that. Thus, a commitment to pursuing fidelity in
constitutional interpretation does not require a commitment to originalism. To the contrary, I
shall argue that the best conception of fidelity is that of pursuing integrity with the moral reading
of the Constitution (in Dworkins terms) or of redeeming the promises of the Constitutions
abstract commitments (in Balkins terms).
3. Interpretation Originalism. Originalists sometimes claim or assume that
interpretation necessarily entails originalism, ranging from naive or crude versions of this claim
(for example, Bork and Scalia) to sophisticated versions of it (for example, Whittington). 67 This
claim is most famously illustrated in the old, discredited dichotomy of interpretivism versus
noninterpretivism. 68 People who now call themselves originalists used this dichotomy to load
the dice in favor of interpretivism, saying that they were the ones who believe in interpreting
the Constitution, while the others advocate noninterpreting it (or remaking or changing it).
Whittingtons project in his book, Constitutional Interpretation, is to reconstruct
originalism, to attempt to rescue it from criticisms of the old originalism. His general tack is to

17
appear to concede points to critics of originalism. For example, he more forthrightly grapples
with arguments Dworkin made about interpretation than practically any other originalist. 69
Unlike Bork and Scalia, he doesnt simply hurl insults about Dworkin being a noninterpretivist
or, worse yet, a heretic or expatriate who would subvert the Constitution.70 For example,
Whittington appears to concede that Dworkin (and Thomas Grey) were right in saying that [w]e
are all interpretivists and that the real question was not whether we should interpret or not, but
rather what the Constitution is and how we should interpret it? 71 Thus, Whittington appears to
concede that Dworkin advanced a conception of interpretation that is an alternative to
originalism.
What is more, Whittingtons project in his companion book, Constitutional Construction,
is to broaden constitutional discourse to include two types of elaboration of constitutional
meaning: not only interpretation by courts (the characteristic preoccupation of the old
originalists) but also construction outside the courts by legislatures and executives. He explains
his distinction between interpretation and construction as follows:
Unlike jurisprudential interpretation, construction provides for an element of
creativity in construing constitutional meaning. Constructions do not pursue a
preexisting if deeply hidden meaning in the founding document; rather, they
elucidate the text in the interstices of discoverable, interpretive meaning, where
the text is so broad or so underdetermined as to be incapable of faithful but
exhaustive reduction to legal rules. 72
But, just when it begins to look like Whittington is developing a constitutional theoryof
interpretation and constructionthat might be safe for people who are not old originalists, he
makes two key moves.

18
The first move is to say that what people like Dworkin (and me) call interpretation is
really construction, and therefore is appropriate for legislatures but not for courts. 73 That is, he
tries to deflect the force of Dworkins criticisms of originalism by saying that Dworkins
conception of interpretation more properly should be understood as a theory of construction,
which would be appropriate for legislatures, not courts. This is Whittingtons more sophisticated
version of Borks and Scalias polemical assertions that Dworkin is advocating judicial
legislationjudges making law, not interpreting it.
Whittingtons second move is to say that a commitment to interpretation necessarily
entails a commitment to originalism. Indeed, he practically revives a version of the discredited
distinction between interpretivism and noninterpretivism. He writes that his account of
originalism largely assumes a prior commitment on the part of constitutional theorists, judges,
and the nation to constitutional interpretation. He continues: If we are to interpret, then I
believe we must be originalists. That is, interpretation entails originalism. Whittington adds:
But we may not want to interpret.... We may want to engage in a text-based social practice,
but that is not the same thing [as] being committed to interpretive fidelity. 74 In other words, the
people who want to do that are not interpreting. Here he echoes the discredited old charge that
anyone who is not committed to an originalist conception of interpretive fidelity is a
noninterpretivist whose real interest is not interpreting the Constitution but changing it.
I want to step back for a moment and offer a hypothesis about what Whittington is doing.
My hypothesis is that in responding to criticisms of the old originalism, Whittington tries to
expand the realm of constitutional discourse to include constitutional construction outside the
courts; but he does so in order to justify narrowing constitutional interpretation inside the courts
to originalism. All of this is a rhetorically effective way of seeming to agree with arguments that

19
no originalist could answer, while deflecting those arguments and reinstating positions that no
originalist can defend. Whittington sketches a notion of constitutional construction by
legislatures and executives, and gives historical examples of it, such as the impeachment of
Justice Samuel Chase in 1804-05, which helped establish subsequent understandings of the
purpose and limits of federal impeachment power, and the nullification crisis of 1832-33, which
promoted more decentralizing conceptions of federalism. 75 Yet he does not articulate criteria for
distinguishing kinds of decisions that are appropriately made by courts through interpretation
and kinds of decisions that should be left to legislatures and executives through construction.
Nor does he answer the question of why courts should limit themselves to what he calls
interpretation as distinguished from what he calls construction. As stated above, he throws out
the old originalist arguments for originalism based on judicial restraint and democratic
majoritarianism. All that is left is his assumption that interpretation necessarily entails
originalism.
Whittington forthrightly criticizes the old originalism for being circular, question
begging, and axiomatic. Yet his originalism is vulnerable for the same reasons and, more
generally, it does not overcome the flaws of the old originalism. In any case, his work embodies
a sophisticated version of the assumption that a commitment to interpretation necessarilyby
definition, axiomaticallyentails a commitment to originalism. But, contrary to this common
originalist assumption, [t]here is nothing that interpretation just is, as Sunstein has aptly put
it. 76 Indeed, I argue, the best conception of interpretation is that of a moral reading, not any
variety of originalism.
4. The Classical, Interpretive Justification of Judicial Review Originalism. Originalist
scholars and jurists sometimes claim or assume that the classical, interpretive justification of

20
judicial review, put forward in The Federalist No. 78 and Marbury v. Madison, 77 necessarily
entails originalism. Scalia makes this assumption in his piece, Originalism: The Lesser Evil, and
in his partial dissent in Planned Parenthood v. Casey. 78 In analyzing this assumption, we should
distinguish between the following two fundamental interrogatives of constitutional
interpretation: What is the Constitution? and Who may authoritatively interpret it? 79 To elaborate
the distinction: The answer to the question, What does the Constitution include?for example,
text expressing specific rules only or text embodying abstract moral principlesdoes not
determine the answer to the question Who, as between legislatures and courts, may
authoritatively interpret and enforce the Constitution, whatever it includes.
The classical, interpretive justification for judicial review, put forward in The Federalist
No. 78 and Marbury, is a famous answer to the Who question: Courts are obligated to interpret
the higher law of the Constitution and to preserve and enforce it against encroachments by the
ordinary law of legislation. This justification is agnostic as between the following two competing
answers to the What question. The first is a legal positivist conception advanced by Bork and
Scalia. On this view, the Constitution is basically a code of detailed historical rules. It excludes
abstract moral principles. 80 The second answer is Dworkins idea of a moral reading of the
Constitution, and Barbers and my philosophic approach to constitutional interpretation. These
theorists believe the Constitution embodies a scheme of abstract moral principles. 81 Thus, the
important question becomes What is the Constitution? That is, What is the character of our
commitments and What does the Constitution include? In particular, which of the two foregoing
general answers is superior?
Narrow originalists like Bork and Scalia have asserted a monopoly on the classical,
interpretive justification of judicial review, just as on concern for fidelity in constitutional

21
interpretation. Again, they offer the foregoing legal positivist answer to the question What does
the Constitution include. The Constitution consists of the text only, which should be understood
as a code of detailed historical rules, and it excludes any conception of a scheme of abstract
moral principles. For them, the classical, interpretive justification of judicial review requires
judges to interpret and enforce the Constitution so understood. And fidelity to the Constitution so
understood forbids judicial interpretation and enforcement of abstract moral principles.
Dworkin, Barber, and I have challenged the narrow originalists pretensions to a
monopoly on the classical, interpretive justification of judicial review and their understanding of
fidelity. We have sought to reclaim and reconstruct the classical, interpretive justification with
our own conceptions of both constitutional meaning and constitutional fidelity. 82 The
Constitution includes the text, but words like freedom of speech, liberty, due process, and
equal protection refer to abstract moral principles. And so, for us, the classical, interpretive
justification of judicial review requires judges to interpret and enforce the Constitution so
understood. And fidelity to the Constitution as written requires judicial interpretation and
enforcement of abstract moral principles including liberty.
To return to my main point, the classical, interpretive justification of judicial review does
not necessarily entail a commitment to originalism. Formally, it is agnostic as among competing
conceptions of what the Constitution is. That is, this justification simply entails that we should
interpret the fundamental law of the Constitutionwhatever it is, code of concrete rules or
charter of abstract principlesand enforce it against encroachment by the ordinary law of
legislation. I argue that the better conception of the Constitution is as a charter of abstract
principles.

22
5. Originalism The Law. Baude asks: Is Originalism the Law? And he answers:
Yes. That is, in terms of my equations stemming from the originalist premise, originalism =
the law. I answer: No, at best originalism is bunk (as Berman put it) and at worst it is a
judicial battering ram for obliterating the achievements of the twentieth century (as Ackerman
has argued). 83 When I answer in these ways, I am thinking of originalism in a conventional
strong, exclusive sense: that the only legitimate source of constitutional interpretation is the
relatively concrete original meanings and expectations of the historical framers and ratifiers.
Baude concedes that originalism in this sense is not the law. But he argues that originalism in
his extremely inclusive senseas the ultimate originalismis the law. 84 I am going to make
two points, one about sources and the other about precedents. First, Baudes ultimate originalism
is so inclusive that it incorporates practically all the sources that the exclusive originalists
typically have sought to excludeand that the critics of originalism have embraced. Second, his
new, improved, ultimate originalism is also so inclusive that it reinterprets, as consistent with
originalism, practically all of the precedents that the exclusive originalists typically have sought
to exclude as extra-legaland that the critics of originalism have celebrated.
Let me briefly illustrate my claim regarding sources. Baudes capacious ultimate
originalism includes, as coming within the law, most every source of constitutional
interpretation we invoke and every type of argument we make in constitutional law and theory
around here in the United States. It turns out that the ultimate originalism can accommodate
these other methods of interpretation and decision, provided they trace their pedigree to the
original text. Or, provided these methods are kinds of authority the original meaning permits.
This ultimate originalism includes, he practically concedes, nearly everything. But he insists
that it excludes anything that cannot be fairly traced to founding sources. 85

23
!

You claim that your interpretation is the best understanding of the text? You come within
the ultimate originalism.

You invoke history? Youre an originalist.

You make arguments about the best understanding of a line of precedents? Youre an
originalist.

You draw inferences from structures and relationships? Youre an originalist.

You make ethical arguments from the nature of the Constitution? Youre an originalist.

You conceive the Constitution as including commitments to abstract evolving principles

and make arguments about the evolving meaning of those commitments? Youre an
originalist.

You claim your interpretation is consistent with the abstract wisdom of the founders
(even if not with their specific expectations)? Youre an originalist.

You make arguments about the genius or spirit of the constitutional design? Youre an
originalist.

You claim that your approach to interpretation is faithful to the Constitution? Youre an
originalist.

Proponents of all of these sources and types of argument claim that they are authorized by the
Constitution. All profess fidelity to the constitutional text. And so, all come within Baudes
ultimate originalism. But, in bringing all of these sources within the big tent of the ultimate
originalism, have we made any progress in framing or resolving the impasse in the debates over
competing approaches to constitutional interpretation? No, we still carry forward all of our
disagreements. Hence, we are all originalists nowand originalism is the lawonly in a thin,
trivial, way.

24
Now I shall briefly discuss my claim regarding precedents. Consider the following list of
precedents commonly thought to be, as Baude puts it, anti-originalist: 86
!

Blaisdell: holding that the Contract Clause of the Constitution permits Minnesota to
impose a temporary moratorium on mortgage foreclosures to relieve debtors during the
Great Depression, over Justice Sutherlands vehement dissent arguing that [a] candid
consideration of the history and circumstances which led up to and accompanied the
framing and adoption of this clause will demonstrate conclusively that it was framed and
adopted with the specific and studied purpose of preventing legislation designed to
relieve debtors especially in time of financial distress. 87

Brown: holding that the Equal Protection Clause forbids segregated public schools,
rejecting as inconclusive the argument of the states in that case that, because the
Congress that proposed the Clause also provided for segregated public schooling in the
District of Columbia, it could not have been the intention of the framers or original
meaning of the Clause to prohibit segregated public schooling. 88

Roe: holding that the Due Process Clause protects the right of a woman to decide whether
to terminate a pregnancy, despite Justice Rehnquists argument in dissent that such a right
was completely unknown to the drafters of the [Clause] and that in 1868 there were at
least 36 laws enacted by state or territorial legislatures limiting abortion. 89 Scalia wrote
an angry originalist dissent in Casey (which reaffirmed Roe), protesting that (1) the
Constitution says absolutely nothing about [abortion], and (2) the longstanding traditions
of American society have permitted it to be legally proscribed. 90

Reed and Craig: holding that the Equal Protection Clause prohibits discrimination on the
basis of gender, over Justice Rehnquists argument in dissent in Craig that [t]he Equal

25
Protection Clause contains no such language as the Courts language applying
intermediate scrutiny to laws discriminating on the basis of gender. 91 Many years later,
in United States v. Virginia, Justice Scalia in dissent still argued that only highly
deferential rational basis scrutiny should apply to laws discriminating on the basis of
gender. 92
!

Lawrence: holding that the Due Process Clause protects a right of gays and lesbians to
intimate association or sexual autonomy, notwithstanding the observations in Bowers v.
Hardwick (the case it overruled) that proscriptions against consensual sodomy have
ancient roots and that in 1868 all but 5 of the 37 States in the Union had criminal
sodomy laws, 93 and despite Scalias vigorous originalist dissent arguing that Bowers
conclusion is utterly unassailable. 94

The punch line of Baudes analysis: if we conceive the ultimate originalism broadly enough, we
will find that these precedents are actually reconcilable with originalism. 95
Baude says that critics of originalism say these cases pose a problem for originalism or
cant be squared with originalism. But he argues that these critics are wrong. He admits that
the cases cannot be justified within strong, exclusive old-time originalism, which conceives the
relevant original meanings as the relatively specific original meanings and expectations of the
historical framers and ratifiers. But he insists that they come within the ultimate originalism,
which includes abstract conceptions of the relevant original meaning. 96
Hold on just one minute! The arguments that these cases are not originalist did not
originate with recent anti-originalists who are trying to argue that originalism is not the law. The
judges and scholars who initially made these arguments were originalists like Bork and Scalia,
canonical originalists if ever there were any. They spent their whole careers railing against such

26
cases (though they strained to say that Brown was rightly decided), arguing that they cannot be
squared with originalism, and arguing against conceiving the relevant original meanings as
abstract principles. They accused judges like Brennan and scholars like Dworkin of rewriting the
Constitution through conceiving it as a scheme of abstract principles rather than a code of
relatively specific original meanings and expectations of the historical framers and ratifiers.
Lets be clear about what Baude is saying and what is going on here. He is saying that
canonical originalists like Bork and Scalia were wrong in criticizing these precedents for not
being originalist! Furthermore, he observes that recent originalist scholars have sought to show
that, lo and behold, despite all the originalist criticisms of these cases for all these years, the
cases can be reconciled with originalism, or even be justified within originalism, after all.
!

Blaisdell: forget Justice Sutherlands famous originalist dissent, Baude, quoting Thomas
Colby, says Blaisdell actually appears to be a paragon of the New Originalism rather
than nonoriginalism. 97

Brown: forget the well-known originalist critiques of Brown, 98 Baude suggests that
Michael McConnell has shown Brown to be justified on the basis of original meaning
after all. 99

Roe: forget Rehnquists and Scalias originalist dissents in Roe and Casey, Baude argues
that the opinion in Roe is not obviously hostile to originalist reasoning. 100 Indeed,
Balkin has developed an abstract originalist justification for Roe. 101

Reed and Craig: despite Rehnquists early originalist dissents and Scalias obstinate
arguments that the original meaning of the Clause does not condemn sex discrimination,
Baude notes Steven Calabresis recent argument that the original meaning of the Clause
does forbid sex discrimination. 102

27
!

Lawrence: despite Scalias furious originalist dissent, Baude suggests that Lawrence too
can be justified within the ultimate originalism. Indeed, he mentions that some
originalists like Michael Ramsey have argued that an originalist constitutional case
against sexual orientation discrimination is plausible, and beyond that have suggested
that there is an originalist case for same-sex marriage. 103
To anyone who is not a conservative originalist, it is clear what is going on here.

Conservative originalists in the generation after Bork and Scalia are weary of the baggage of the
prior originalist criticisms of these landmark cases. These cases have become (or are becoming)
broadly accepted as part of the canon of constitutional law (leaving aside Roe, which remains
controversial). These scholars want to be able to say that these cases were rightly decided. To do
so, they are forced by their commitment to originalism to say that the cases can be squared with
or justified within originalism. To accomplish this, they conceive the relevant original meanings
as abstract principles like liberty and equality that have to be elaborated over time rather than
relatively specific original meanings and expectations of the historical framers and ratifiers that
are determinative. Lo and behold, they conclude that these cases can be justified within
originalism after all. But originalism in any commonly understood sense did not do any work in
deciding or justifying any of these cases to begin with. It features only in these after-the-fact
rewritings.
Lets be perfectly clear about what these originalists are doing. They are doing what Bork
and Scalia spent their lives accusing Brennan and Dworkin of doing and what they condemned
as the sins of living constitutionalism or moral readings: conceiving the relevant original
meaning abstractly, rather than specifically, in order to justify the outcomes they favor on
political or moral grounds. Who do these originalists think they are fooling when they go through

28
these contortions? The whole exercise is unconvincing to anyone not already operating on the
premise that everything they think is rightly decided just has to be originalist. This is another
manifestation of the originalist premise.
In claiming that originalism is the law, Baude says he is describing our constitutional
practice in a positivist spirit. Let me distill his claim into a positivist syllogism:
Major premise: Whatever it is that we constitutional lawyers and judges do
around here in the U.S. is the law.
Minor premise: Just about everything we do around here comes within the
ultimate originalism.
Conclusion: Therefore, the ultimate originalism is the law.
I can say something more significant and even more succinct: Everyone around here claims that
their theories and interpretations are faithful to the Constitution. Everyone around here
acknowledges the priority of the constitutional text.104 But that does not entail that originalism
is the lawunless we are assuming, on the originalist premise, that originalism just is the law.
Is Baudes claim that originalism is the law interesting? It is not interesting in the sense
of telling us something important about what the Constitution is and how to interpret it. It is
interesting only in the sense that it shows us the lengths to which originalists will go to say that
originalism is our approach to constitutional interpretation. For the argument that originalism is
the law to be interesting and significant, it would have to be the claim that strong, exclusive
originalism is the law: that original meaning in the sense of the relatively specific original
meanings and expectations of the historical framers and ratifiers is the only legitimate source of
constitutional interpretation. That claim would be quite interesting. But it would be dead wrong

29
as a positivist, empirical account of our practice of constitutional law, as Baude himself
concedes. 105
IV. WHY DO I HOPE THAT WE ARE NOT ALL ORIGINALISTS NOW?
Richard Posner confessed to a visceral dislike of...academic moralism, a body of
literature bringing normative moral and political theory to bear on legal analysis: A lot of it
strikes me as prissy, hermetic, censorious, naive, sanctimonious, self-congratulatory, [and]
insipid. 106 I wont say anything of this sort about originalism! I have more substantive, and less
visceral, reasons for hoping that we are not all originalists now. 107
First, originalism, old and new, is at bottom authoritarian, an insult to the founders for
their arrogance and an insult to us for our subservience. 108 A regime of purportedly dispositive
original meanings is, at best, beside the point in constitutional interpretation and, at worst, an
authoritarian regime that is unfit to rule a free and equal people. To add further insult, its
proponents (at least those besides Whittington) serve it up to us in the name of democracy! 109
Second, originalism, old and new, makes a virtue of claiming to exile moral and political
theory from the province of constitutional interpretation. 110 That is neither possible nor desirable,
nor is it appropriate in interpreting our Constitution, which establishes a scheme of abstract
aspirational principles and ends, not a code of detailed rules. Interpreting our Constitution with
fidelity requires normative judgments of moral and political theory about how those principles
are best understood.
Third, originalism, old and new, misconceives fidelity in constitutional interpretation.
Under the best conception of fidelityfidelity as integrity with a moral reading of the
Constitutionwe conceive fidelity as honoring our aspirational principlesthe principles to
which we as a people aspire, and the principles for which we as a people standrather than as

30
following our historical practices and concrete original meanings, which surely have failed to
realize our aspirations. 111 Ironically, in the name of interpretive fidelity, originalists would
enshrine an imperfect constitution that does not deserve our fidelity. A moral reading, because it
understands that the quest for fidelity in interpreting our imperfect Constitution exhorts us to
interpret it so as to make it the best it can be, 112 offers hope that the Constitution may deserve our
fidelity, or at least may be able to earn it.
If I hope we are not all originalists now, what do I hope we (at least some of us) are?
Much of the best work in constitutional theory today is not originalist in either an old or a new
sense; rather, it is what I have called constructivist. (Note that I did not say nonoriginalist.
Im not going to fall into that rhetorical trap set by Scalia and Bork.) This work acknowledges
the place of historymost notably, original meaning, post-adoption history, and precedentas
sources of constitutional interpretation. It recognizes the limitations of history but also
appreciates the uses of history (which are different from conventional originalist uses of history).
In prior work, I have developed a constitutional constructivism by analogy to John Rawlss
political constructivism, a theory he developed in Political Liberalism. 113 Constitutional
constructivism conceives constitutional interpretation as a quest, not for the relatively specific
original meaning of the constitutional text, but for the best interpretation of our constitutional
text, history, and structure, together with our constitutional practice, tradition, and culture. As
just sketched, it conceives our Constitution as a scheme of abstract aspirational principles and
ends, not a code of detailed rules. And it entails that interpreting our Constitution with fidelity
requires judgments of moral and political theory about how those principles and ends are best
understood. Constitutional constructivism enables us to see that historyincluding original

31
meaning, post-adoption history, and precedentshelps illuminate the best understanding of our
commitments, but it does not make our decisions for us.
In Chapters 5 and 6, I shall consider the question, what would the use of history look like
in a constructivist world? In a constructivist world, we would give due regard to original
meaning in constitutional interpretation without being originalist. We would embrace Dworkins
idea that there are two dimensions of best interpretationfit and justification. 114 Fidelity in
constitutional interpretation is not purely a matter of fit with historical materials, but also a
matter of justification in political theory. Fit and history do have a role to play in the quest for
fidelity to the Constitution, but a limited one. We should acknowledge the place of history in
constitutional interpretationas a resource or factor that comes into play in the dimension of
fitbut should keep it in its place. Originalistsnarrow and broad, old and newexaggerate
the place of history and give it a greater role than it deserves and than it is capable of playing.
History is, can only be, and should only be a starting point in constitutional interpretation.
It has a threshold role, which is often not dispositive. Contrary to originalists like Michael
McConnell, fit is [not] everything. 115 In the dimension of fit, history helps (or should help)
screen out off-the-wall interpretations or purely utopian interpretations, but often does not lead
conclusively to any interpretation, let alone the best interpretation. History usually provides a
foothold for competing interpretations or competing theories. It alone cannot resolve the clash
among them. Deciding which theory provides the best interpretation is not a historical matter of
reading more cases, tracts, or speeches or more scrupulously doing good professional history.
To resolve the clash among competing interpretations or competing theories, we must
move beyond the threshold dimension of fit to the dimension of justification. History rarely has
anything useful, much less dispositive, to say at that point. Indeed, I shall suggest in Chapter 4,

32
the best professional historians understand this and know better than to be originalists;
unfortunately, some constitutional lawyers and scholars do not. In deciding which interpretation
among competing acceptably fitting interpretations is most faithful to the Constitution, we must
ask further questions: Which interpretation provides the best justification, which makes our
constitutional scheme the best it can be, which does it more credit, or which answers better to our
best aspirations as a people? These questions are required by the quest for fidelity in the sense of
honoring our aspirational principles, not merely following our historical practices or the original
meaning of the text.
V. TOWARD A PHILOSOPHIC APPROACH TO FIDELITY IN CONSTITUTIONAL INTERPRETATION
In sum, a constructivist world would look somewhat like the pre-originalist world (that is,
the pre-Borkian world), although it would be far more sophisticated theoretically than that world
was. It would treat original meaning as one source of constitutional meaning among several, not
the exclusive source, let alone the exclusive legitimate theory. It would regard precedent as a
resource or factor in constitutional interpretation, not a strong obligation. It would use history for
what it teaches rather than for what it purportedly decides for us. In a constructivist world, we
would understand that history is a jumble of open possibilities, not authoritative, determinate
answers. We would understand that weself-styled originalists no less than the rest of us
always read the past selectively, from the standpoint of the present, in anticipation of the future.
We look to the past, not for authoritative answers, but for illumination about our experience and
our commitments.
Finally, we would understand that it dishonors the past to pretendin the name of
originalismthat it authoritatively decides questions for us, and to pretend that it avoids the
burden of making normative arguments about the meaning of our commitments to abstract moral

33
principles and ends. Fidelity in interpreting the Constitution as written requires a philosophic
approach to constitutional interpretation. No approachincluding no version of originalism
can responsibly avoid philosophic reflection and choice in interpreting the Constitution.
In this book, I shall argue that a moral reading or philosophic approach is superior, as a
conception of fidelity, to originalism. Here, as in Constitutional Interpretation: The Basic
Questions, 116 I shall defend the philosophic approach to constitutional interpretation, understood
in rough and common sense terms as interpreters thinking for themselves about what
constitutional provisions seem to refer tolike equal protection itself and due process itself, not
anyones specific conceptions of equal protection and due process. This thinking for oneself
must be conducted with an attitude of self-criticism, seeing constitutional interpretation as a selfcritical quest for truth about or the best understanding of the Constitution. The philosophic
approach does not involve judges or other interpreters doing moral and political philosophy
without regard to the commitments of our constitutional order, our history, and our traditions.
But it does involve making philosophic choices in elaborating the meanings of our constitutional
commitments. Some jurists and scholars have objected that judges simply are not capable of
discharging this responsibility: that, under the philosophic approach, judges must be Platonic
philosopher-judges living on Olympus. 117 In fact, all the philosophic approach requires is that
judges take responsibility for the kinds of philosophic choices that they have been making all
along down here in the U.S.A. Furthermore, the philosophic approach does not exclude
considerations of constitutional meaning associated with other approaches but in fact represents a
fusion with other approaches.
In Part I, I assess the new originalism and its originalist discontents. In Chapter 2, I
examine the inclusiveness of the new originalism. I argue that, with their recognition that the

34
relevant original meaning is abstract and that most of the significant work of constitutional
decision occurs in the construction zone which lies beyond originalism and often requires
normative judgments the new originalists have made spectacular concessions to the moral
reading or philosophic approach. In Chapter 3, I show that the new originalism has provoked
pushback within originalism, for example, the emergence of original methods originalism and
calls for revival of the old time originalism. I reject original methods originalism and consider
reasons commonly given for the appeal of originalism in our constitutional culture. I argue that
these reasons are better understood as reasons for the aspiration to fidelity. Furthermore, I argue
that these 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.
In Part II, I develop a moral reading or philosophic approach as an alternative to
originalism. In Chapter 4, I elaborate my substantive and interpretive theory and consider
democratic and fidelist objections to it, observing that such objections have fueled not only old
originalist but also broad originalist resistance. In Chapter 5, I show the place of precedent and
common law constitutional interpretation in a moral reading or philosophic approach.
In Part III, I assess two leading formulations of broad originalism that are also commonly
understood as versions of living constitutionalism, those of Balkin and Ackerman. I consider
their reasons for resisting a moral reading or philosophic approach. But I argue that these
theories are best understood or recast as moral readings: Balkins theory would redeem the
abstract promises of the Constitution and Ackerman would honor the achievements of We the
People in hammering out the best understandings of our constitutional commitments.

35
Finally, in Part IV, I consider arguments that the U.S. Constitution is so imperfect and
the constitutional and political system so dysfunctional or otherwise failing that it is time to
rewrite the Constitution. I argue that the better approach is to maintain an attitude of fidelity to
our imperfect Constitution, and to apply a Constitution-perfecting theory to interpret the
Constitution so as to make it the best it can be.
Throughout, I argue that the aspiration to fidelity to our imperfect Constitution calls for a
moral reading or philosophic approach, not any version of originalism.

36
NOTES TO CHAPTER ONE
1. ROBERT W. BENNETT & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE 1
(2011) [hereinafter SOLUM].
2. William Baude, Is Originalism the Law?, 19 (unpublished essay on file with the author).
Baude presented this essay in a Yale Law School Federalist Society debate with me entitled, Is
Originalism the Law? Are We All Originalists Now?, on October 7, 2014.
3. Id. at 19-23.
4. LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE 11-28, 139-43 (2013); Louis
Michael Seidman, Op-Ed., Lets Give Up on the Constitution, N.Y. TIMES, Dec. 31, 2012, A19.
5. James E. Fleming, The Balkanization of Originalism, 67 MARYLAND LAW REVIEW 10 (2007);
James E. Fleming, The Balkinization of Originalism, 2012 UNIVERSITY OF ILLINOIS LAW REVIEW
669.
6. Antonin Scalia, Originalism: The Lesser Evil, 57 UNIVERSITY OF CINCINNATI LAW REVIEW
849, 861 (1989).
7. E.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE
FOURTEENTH AMENDMENT 110 (1977).
8. E.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
144 (1990).
9. SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE BASIC
QUESTIONS 84-91 (2007).
10. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy
Gutmann ed., 1997).

37

11. Scalia, Originalism, supra note 6, at 861-62. Jennifer Senior, In Conversation: Antonin
Scalia, in nymag.com/news/features/antonin-scalia-2013-10/index1.html (Senior: Youve
described yourself as a fainthearted originalist. But really, how fainthearted? Scalia: I
described myself as that a long time ago. I repudiate that.).
12. See, e.g., Lawrence Lessig, Fidelity in Translation, 71 TEXAS LAW REVIEW 1165, 117173
n.32 (1993) (developing a broad originalist conception of fidelity as translation, under which
constitutional interpretation must encompass both text and context).
13. Keith E. Whittington, The New Originalism, 2 GEORGETOWN JOURNAL OF LAW & PUBLIC
POLICY 599, 60712 (2004); SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 5-11;
Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOYOLA LAW REVIEW 611 (1999).
14. See Keith E. Whittington, Dworkins Originalism: The Role of Intentions in Constitutional
Interpretation, 62 REVIEW OF POLITICS 197, 201 (2000).
15. JACK M. BALKIN, LIVING ORIGINALISM 23-34 (2011).
16. JOHN O. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION
116-38 (2013).
17. Steven D. Smith, That Old-Time Originalism, in THE CHALLENGE OF ORIGINALISM:
THEORIES OF CONSTITUTIONAL INTERPRETATION 223 (Grant Huscroft & Bradley W. Miller eds.,
2011).
18. Mitchell Berman, Originalism is Bunk, 84 NEW YORK UNIVERSITY LAW REVIEW 1, 14
(2009).
19. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 2-3 (1996); BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note
9, at xiii, 155-70.

38

20. I have addressed these questions in BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION,
supra note 9, at 91-98, and have incorporated some of that analysis in this section.
21. Here I am using the term original understanding generically to include original
understanding, intention of the framers, and original public meaning. I am not taking a position
on the debates among varieties of originalism concerning these particular formulations.
22. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 711; Whittington, The New
Originalism, supra note 13, at 603.
23. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 21.
24. See, e.g., BERGER, GOVERNMENT BY JUDICIARY, supra note 7; BORK, TEMPTING OF AMERICA,
supra note 8.
25. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL
INTENT, AND JUDICIAL REVIEW 46 (1999).
26. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 20-21.
27. See, e.g., BERGER, GOVERNMENT BY JUDICIARY, supra note 7, at 133-54 (criticizing Brown v.
Board of Education, 347 U.S. 483 (1954), as wrongly decided).
28. I am here distinguishing new originalisms from the new originalism. See Mitchell N.
Berman & Kevin Toh, On What Distinguishes New Originalism from Old: A Jurisprudential
Take, 82 FORDHAM LAW REVIEW 545, 553-54 (2013). The new originalism is more
programmatic and is associated with Whittington, Solum, and Randy Barnett. New originalisms
could include broad or abstract originalisms that are not associated with the programs of those
scholars.
29. Scalia, Originalism, supra note 6, at 861, 863-64.

39

30. Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (Scalia, J., plurality opinion) (acknowledging
that the Fourteenth Amendment protects unenumerated liberties that are deeply rooted in this
Nations history and tradition). For a criticism of Scalias understanding of tradition as
concrete historical practices, as distinguished from Brennans understanding of tradition as
abstract aspirational principles, see JAMES E. FLEMING, SECURING CONSTITUTIONAL
DEMOCRACY: THE CASE OF AUTONOMY 11216 (2006).
31. See BORK, TEMPTING OF AMERICA, supra note 8, at 223, 23637.
32. Scalia, Originalism, supra note 6, at 861 (adulterate[d]); SCALIA, A MATTER OF
INTERPRETATION, supra note 10, at 140 (pragmatic exception).
33. See SCALIA, A MATTER OF INTERPRETATION, supra note 10, at 38.
34. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 4.
35. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 13-15, 427 (2012).
36. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 4.
37. Senior, In Conversation: Antonin Scalia, supra note 11 (Senior: Youve described yourself
as a fainthearted originalist. But really, how fainthearted? Scalia: I described myself as that a
long time ago. I repudiate that.).
38. Whittington, The New Originalism, supra note 13, at 601-04. Whittington acknowledges Ken
Kerschs similar, helpful argument about the development of a proactive originalism, to be
contrasted with the reactive originalism of the 1970s and 1980s. See Keith E. Whittington,
Originalism: A Critical Introduction, 82 FORDHAM LAW REVIEW 375, 377 n.15 (2013)
(discussing Ken I. Kersch, Ecumenicalism Through Constitutionalism: The Discursive

40

Development of Constitutional Conservatism in National Review, 1955-1980, 25 STUDIES IN

AMERICAN POLITICAL DEVELOPMENT 86, 103 (2011)).
39. Whittington, The New Originalism, supra note 13, at 608-09.
40. See SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 5-11, 22-24, 34-36.
41. Id. at 50-54, 64.
42. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter FOUNDATIONS];
AKHIL REED AMAR, AMERICAS UNWRITTEN CONSTITUTION (2012); Lawrence Lessig, Fidelity in
Translation, supra note 12. Ackerman, Amar and Lessig are sometimes interpreted as
developing a broad originalism for liberals. See Michael C. Dorf, Integrating Normative and
Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEORGETOWN LAW
JOURNAL 1765, 1774-87 (1997) (criticizing the [k]inder, [g]entler [o]riginalism[s] of
Ackerman and Lessig); LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 21229
(1996) (analyzing Ackerman and Amar as liberal originalists).
43. See KALMAN, STRANGE CAREER OF LEGAL LIBERALISM, supra note 42, at 13235, 13839,
141, 156 (discussing liberal [a]cademic lawyers...ced[ing] the historical battleground to the
right and now trying to reclaim it).
44. BALKIN, LIVING ORIGINALISM, supra note 15, at 21-34, 42-45.
45. See Whittington, Dworkins Originalism, supra note 14, at 201 (arguing that Dworkin is
an originalist who believes the Founders chose abstract principles).
46. DWORKIN, FREEDOMS LAW, supra note 19, at 7-12, 72-76; Ronald Dworkin, The Arduous
Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 FORDHAM LAW REVIEW 1249
(1997).
47. Amy Gutmann, Preface to SCALIA, A MATTER OF INTERPRETATION, supra note 10, at xi-xii.

41

48. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 35.

49. BORK, TEMPTING OF AMERICA, supra note 8, at 187-240.
50. Lessig, Fidelity in Translation, supra note 12, at 1260; Lawrence Lessig & Cass R. Sunstein,
The President and the Administration, 94 COLUMBIA LAW REVIEW 1, 11 n.35, 85 n.336 (1994).
51. For example, at a conference at Fordham University School of Law on The New
Originalism in Constitutional Law, March 1-2, 2013, Solum suggested that, to the extent I take
fidelity to the text to operate as a constraint, I am a new originalist.
52. BORK, TEMPTING OF AMERICA, supra note 8, at 162-63.
53. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 22, 24-25.
54. Id. at 26, 60.
55. Scalia, Originalism, supra note 6, at 852-56, 862-64.
56. DWORKIN, FREEDOMS LAW, supra note 19, at 287-305; RONALD DWORKIN, A MATTER OF
PRINCIPLE 33-57 (1985).
57. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27
SOUTH TEXAS LAW REVIEW 433, 437 (1986); DWORKIN, FREEDOMS LAW, supra note 19, at 712, 72-76; Dworkin, Arduous Virtue of Fidelity, supra note 46, at 1253. See also GOODWIN LIU,
PAMELA S. KARLAN, & CHRISTOPHER H. SCHROEDER, KEEPING FAITH WITH THE CONSTITUTION
35-36 (2009).
58. SCALIA, A MATTER OF INTERPRETATION, supra note 10, at 140.
59. LIU, KARLAN, & SCHROEDER, KEEPING FAITH WITH THE CONSTITUTION, supra note 57, at 33.
60. BORK, TEMPTING OF AMERICA, supra note 8, at 187-240; SCALIA, A MATTER OF
INTERPRETATION, supra note 10, at 37-47; Scalia, Originalism, supra note 6, at 852-56, 862-64.

42

61. DWORKIN, FREEDOMS LAW, supra note 19, at 73-76; Dworkin, Arduous Virtue of Fidelity,
supra note 46.
62. See ACKERMAN, FOUNDATIONS, supra note 42, at 88, 15962 (developing an understanding
of fidelity as questing multigenerational synthesis or interpretive synthesis across the three
constitutional regimes or moments of the Founding, Reconstruction, and the New Deal); Bruce
Ackerman, A Generation of Betrayal?, 65 FORDHAM LAW REVIEW 1519, 151920 (1997)
(advancing his conception of fidelity as pursuing intergenerational synthesis).
63. See Lessig, Fidelity and Constraint, 65 FORDHAM LAW REVIEW 1365, 136768, 137176
(1997) (arguing for an understanding of fidelity as grounded in a practice of translation); see
also Lessig, Fidelity in Translation, supra note 12, at 126364 (same).
64. See Jack N. Rakove, Fidelity Through History (or to It), 65 FORDHAM LAW REVIEW 1587,
160509 (1997) (discussing fidelity to history and its superiority to originalism, which is a
kind of fidelity through history); see also JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS
AND IDEAS IN THE MAKING OF THE CONSTITUTION 322 (1996) (discussing

the perils of

conventional originalism).
65. See J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 FORDHAM LAW
REVIEW 1703, 170809 (1997) (distinguishing between fidelity to the true Constitution or the
best interpretation of the Constitution [and] its various historical interpretations and
manifestations). Balkin subsequently reworked and incorporated this piece in JACK M. BALKIN,
CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 10338 (2011), the
companion book to BALKIN, LIVING ORIGINALISM, supra note 15, at 35 (arguing for fidelity to
abstract text and principle).

43

66. DWORKIN, FREEDOMS LAW, supra note 19, at 73-76; RONALD DWORKIN, LIFES DOMINION:
AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 125-29 (1993).
67. For a fuller version of this critique, see BARBER & FLEMING, CONSTITUTIONAL
INTERPRETATION, supra note 9, at 94-97.
68. See, e.g., Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STANFORD LAW
REVIEW 703, 703-04 (1975); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF
JUDICIAL REVIEW 1 (1980).
69. WHITTINGTON, CONSTITUTIONAL INTERPRETATION, supra note 25, at 182-87; Whittington,
Dworkins Originalism, supra note 14.
70. See BORK, TEMPTING OF AMERICA, supra note 8, at 136 (subversion), 213-14
(revisionism), 352 (heresies); Scalia, Originalism, supra note 6, at 854 (referring to
Dworkin, an American citizen, as an Oxford Professor (and expatriate American)).
71. Whittington, The New Originalism, supra note 13, at 60607 (internal quotation marks
omitted) (discussing Thomas Greys and Dworkins analyses of interpretation and originalism);
see also WHITTINGTON, CONSTITUTIONAL INTERPRETATION, supra note 25, at 16465 ([A]s
Dworkin himself has done, we must ask after both the nature of the Constitution and the nature
of interpretation in order to discover the best interpretive method for this text.); Whittington,
Dworkins Originalism, supra note 14, at 19799 (I do not wish to resurrect the old
interpretive/noninterpretive distinction.... I contend that Dworkins discussion of constitutional
intentions has not rendered traditional originalism incoherent...and that there remain substantial
differences in what different constitutional theorists are seeking to interpret.).
72. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND
CONSTITUTIONAL MEANING 1-2, 5 (1999).

44

73. WHITTINGTON, CONSTITUTIONAL INTERPRETATION, supra note 25, at 54, 58, 206-12;
Whittington, The New Originalism, supra note 13, at 611-13.
74. Whittington, The New Originalism, supra note 13, at 612-13.
75. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION, supra note 72, at 17-18, 20.
76. CASS R. SUNSTEIN, A CONSTITUTION OF MANY MINDS 19-32 (2009); Cass R. Sunstein,
Second-Order Perfectionism, 75 FORDHAM LAW REVIEW 2865, 2870-74 (2007).
77. The Federalist No. 78, at 467, 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803).
78. Scalia, Originalism, supra note 6, at 854 (asserting that only originalism is compatible with
Chief Justice Marshalls justification for judicial review in Marbury); Planned Parenthood v.
Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in the judgment in part and dissenting in
part) (invoking The Federalist No. 78 as if it supported his originalist view as opposed to the
joint opinions conception of the Constitution as a scheme of abstract aspirational principles
whose interpretation requires reasoned judgment).
79. For a work that conceives the enterprise of constitutional interpretation on the basis of these
two fundamental interrogativesalong with a third, How ought we to interpret the
Constitution?see WALTER F. MURPHY, JAMES E. FLEMING, SOTIRIOS A. BARBER, AND STEPHEN
MACEDO, AMERICAN CONSTITUTIONAL INTERPRETATION 14-17 (5th ed. 2014).
80. See, e.g., SCALIA, A MATTER OF INTERPRETATION, supra note 10, at 13437 (arguing that the
Constitution abound[s] in concrete and specific dispositions and does not embody abstract
aspirational provisions and principles).
81. DWORKIN, FREEDOMS LAW, supra note 19, at 7; BARBER & FLEMING, CONSTITUTIONAL
INTERPRETATION, supra note 9, at 8284, 16566.

45

82. See, e.g., DWORKIN, FREEDOMS LAW, supra note 19, at 7283 (arguing that originalists are
not faithful to the natural reading of the Bill of Rights as a scheme of abstract principles but
instead are revisionists); SOTIRIOS A. BARBER, THE CONSTITUTION OF JUDICIAL POWER 20236
(1993) (defending the classical theory but on a moral realis[t] reading rather than an
originalist understanding).
83. Berman, Originalism is Bunk, supra note 18; BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL
RIGHTS REVOLUTION 329 (2014).
84. Baude, Is Originalism the Law?, supra note 2, at 19.
85. Id. at 25.
86. Id. at 36.
87. Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 453 (1934) (Sutherland, J.,
dissenting).
88. Brown v. Board of Education, 347 U.S. 483, 489 (1954).
89. Roe v. Wade, 410 U.S. 113, 174-75 (1973) (Rehnquist, J., dissenting).
90. Planned Parenthood v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in the
judgment in part and dissenting in part).
91. Reed v. Reed, 404 U.S. 71 (1971); Craig v. Boren, 429 U.S. 190, 220 (1976) (Rehnquist, J.,
dissenting).
92. United States v. Virginia, 518 U.S. 515, 567-68 (1996) (Scalia, J., dissenting).
93. Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick,478 U.S. 186
(1986)). I quote from Justice Whites opinion of the Court in Bowers, 478 U.S. at 192-93.
94. Lawrence, 539 U.S. at 597 (Scalia, J., dissenting).
95. Baude, Is Originalism the Law?, supra note 2, at 31.

46

96. Id. at 20, 47.

97. Id. at 38 (quoting Thomas Colby, The Sacrifice of the New Originalism, 99 GEORGETOWN
LAW JOURNAL 713, 767 (2011)).
98. BERGER, GOVERNMENT BY JUDICIARY, supra note 7, at 133-54.
99. Baude, Is Originalism the Law?, supra note 2, at 38 (citing Michael W. McConnell,
Originalism and the Desegregation Decisions, 81 VIRGINIA LAW REVIEW 947 (1995)).
100. Id. at 40.
101. Jack M. Balkin, Abortion and Original Meaning, 24 CONSTITUTIONAL COMMENTARY 291
(2007).
102. Baude, Is Originalism the Law?, supra note 2, at 43 (citing Steven G. Calabresi & Julia T.
Rickert, Originalism and Sex Discrimination, 90 TEXAS LAW REVIEW 1 (2011)).
103. Id. at 42 (citing Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE DAME
LAW REVIEW 429, 495 (2004), and Michael Ramsey, Is There an Originalist Case for Same-Sex
Marriage?, Mar. 25, 2013, at http://originalismblog.typepad.com/the-originalismblog/2013/03/is-there-an-originalist-case-for-same-sex-marriagemichael-ramsey.html).
104. Id. at 30.
105. Id. at 47.
106. Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARVARD LAW
REVIEW 1637, 1640 (1998).
107. I have made similar arguments in BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION,
supra note 9, at 97-98.
108. Justice Brennan famously stated that originalism is arrogance cloaked as humility.
Brennan, supra note 57, at 435. Brennan is clearly referring to the arrogance of originalists in

47

claiming to be able to determine dispositive original meaning or original intention. We might

also interpret the line as attributing arrogance to the founders for presuming in authoritarian
fashion to decide our questions for us in the manner that originalists claim they did.
109. See, e.g., SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 43 (The connection
between democratic legitimacy and original public meaning is so close and the argument for that
connection so obvious that very little needs to be said about it.).
110. See, e.g., BORK, TEMPTING OF AMERICA, supra note 8, at 21014, 35155 (arguing against
recourse to abstract moral philosophy in constitutional interpretation); WHITTINGTON,
CONSTITUTIONAL INTERPRETATION, supra note 25, at 18287 (criticizing Dworkins argument
that the constitutional text embodies abstract concepts and that interpreters have to make
judgments of moral and political theory about the best understanding of those concepts).
111. For an articulation of this distinction, see FLEMING, SECURING CONSTITUTIONAL
DEMOCRACY, supra note 30, at 112-16.
112. See id. at 16; RONALD DWORKIN, LAWS EMPIRE 255 (1986).
113. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 30, at 4, 6, 6164, 9294
(developing a constitutional constructivism in a general methodological sense as well as a
specific substantive sense by analogy to the political constructivism developed in JOHN RAWLS,
POLITICAL LIBERALISM 89129 (1993)). For another development of a constructivism in a
general sense, see Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional
Interpretation, 100 HARVARD LAW REVIEW 1189 (1987).
114. DWORKIN, LAWS EMPIRE, supra note 112, at 239; DWORKIN, A MATTER OF PRINCIPLE,
supra note 56, at 143-45.

48

115. Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on

Ronald Dworkins Moral Reading of the Constitution, 65 FORDHAM LAW REVIEW 1269, 1273
(1997).
116. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 9, at 155-70.
117. Sunstein, Second-Order Perfectionism, supra note 76, at 2869.

49

PART I
The New Originalism and Its Originalist Discontents

50
CHAPTER TWO
The New Originalist Manifesto
Many have framed the central clash in constitutional theory as being between originalism
and living constitutionalism. Lawrence B. Solum and Robert W. Bennetts excellent book,
Constitutional Originalism: A Debate, is a state-of-the-art staging of that clash. 1 Originalism has
a reasonable, programmatic, and inclusive proponent in Solum. And living constitutionalism has
a capable, pragmatic, and effective champion in Bennett. In this chapter, I shall not judge the
debate between Solums originalism and Bennetts living constitutionalism. Instead, I shall focus
on Solums contribution, interpreting it as a new originalist manifesto. I shall carry on what I
believe is an equally important debate between originalism and what Ronald Dworkin called a
moral reading of the Constitution and what Sotirios A. Barber and I call a philosophic
approach to constitutional interpretation. 2 Again, by moral reading and philosophic
approach, I refer to conceptions of the Constitution as embodying abstract moral and political
principlesnot merely codifying concrete historical rules or practicesand of interpretation of
those principles as requiring judgments of political theory about how they are best understood
not merely historical research to discover relatively specific original meanings. Some readers
may think that Dworkins and my approaches are versions of living constitutionalism, but they
are importantly different from it. I shall suggest that the prospects for reconciliation between
Solums new originalism and moral readings are greater than those between his new originalism
and living constitutionalism. The basic reason is that the new originalists and moral readers share
a commitment to constitutional fidelity: to interpretation and construction that best fits and
justifies the Constitution. Living constitutionalists characteristically are more pragmatic,
instrumentalist, and forward-looking in their approaches to the Constitution and, as such, tend to

51
be anti-fidelity. I shall defend a moral reading or philosophic approach as a conception of
constitutional fidelity and change that is superior to originalism, however conceived. In
subsequent chapters, I also shall recast leading conceptions of living constitutionalism (for
example, those of Jack Balkin, David Strauss, and Bruce Ackerman) as moral readings that strive
to be faithful to the best understanding of the Constitution.
At the outset, I should say that Solum is the ideal scholar for the project of writing a new
originalist manifesto. He fairly concedes many of the flaws in the old originalism, with an
openness to criticism and a generosity of spirit that are not always present in originalists. He
candidly grants that originalism has evolvedthat it is a family of theories rather than one
coherent, unified viewand that the new originalism is a work in progress. 3 He formulates the
new originalism inclusively, seeking and articulating common ground among competing theories
in a constructive spirit. Solum is somewhat unusual in not coming to his originalism for political
reasons. Many conservatives appear to embrace originalism because they believe that it will
support conservative outcomes. As we shall see in Chapter 4, many liberals evidently adopt and
adapt originalism because they believe that it is their best hope to persuade conservative judges:
if you cant beat them, join them. Solum has neither motivation. He seems to come to his new
originalism out of philosophic and jurisprudential commitmentsnot to wage a counterrevolution against the liberal Warren Court but to correct the philosophical and jurisprudential
excesses and errors of Legal Realism and Critical Legal Studies. As a matter of principle, he
wants to get the theory of interpretation and construction right. For these reasons, his project has
an admirable and demonstrable integrity. And it is the perfect foil in my project of articulating
common ground between the new originalism and moral readings.
In Part I, I evaluate the claim implicit in the title of Solums opening chapter, We Are

52
All Originalists Now. In Part II, I explicate Solums formulation of the new originalism by
contrasting it with Keith Whittingtons. In Part III, I explore Solums development of the
distinction between interpretation and construction. In Part IV, I assess his normative arguments
for the new originalism. In Part V, I show the misconceived quest for the original public
meaning. In Part VI, I examine the significance of the movement from intention of the framers to
original public meaning. In Part VII, I take up the possibility of reconciliation between the new
originalism and living constitutionalism, suggesting that such prospects are better for the new
originalism and moral readings. Finally, in Part VIII, I make explicit the missing (or implicit)
argument for the new originalism from constitutional perfectionism: an argument deriving from
the aspiration to fidelity to our imperfect Constitution.
I. ARE WE ALL ORIGINALISTS NOW? EVIDENTLY SO, YET DEFINITELY NOT!
In recent years, some have posed the question, Are we all originalists now? My
response, given in Chapter 1, is I hope not! By contrast, Solum replies with his title, We Are
All Originalists Now. 4 The answer to the question depends, as he recognizes, on what one
means by originalism and whether we define it exclusively or inclusively. 5
In defining originalism, Solum distills an elegant framework with four basic ideas:
!

The fixation thesis: The linguistic meaning of the constitutional text was fixed at the time
each provision was framed and ratified.

The public meaning thesis: Constitutional meaning is fixed by the understanding of the
words and phrases and the grammar and syntax that characterized the linguistic practices
of the public and not by the intentions of the framers.

The textual constraint thesis: The original meaning of the text of the Constitution has
legal force: the text is law and not a mere symbol.

53
!

The interpretation-construction distinction: Constitutional practice includes two distinct

activities: (1) constitutional interpretation, which discerns the linguistic meaning of the
text, and (2) constitutional construction, which determines the legal effect of the text.

Solum aspires to understand originalism and, for that matter, living constitutionalism in their
best lightin their most sophisticated and defensible versions. 6 I shall come back to this
Dworkinian-sounding formulation at the end of this chapter.
If we define originalism inclusively enough, we might say that we evidently are all
originalists now. Indeed, we might just define originalism so broadly that even I would no longer
hope that we are not all originalists now! Applying Solums framework, we would conclude that
Jack Balkin, with his self-described living originalist method of text and principle, definitely is
an originalist. 7 Dworkin, with his moral reading of the Constitution, surely also is. Barber and I,
with our philosophic approach to constitutional interpretation, are as well. So, too, are
reasonable, bounded, and grounded versions of living constitutionalism. All of these theories
evidently can accept the four theses quoted above. Under Solums formulation, originalism
clearly is a big tentcharitable, magnanimous, and inclusionaryrather than the dogmatic,
scolding, and exclusionary outlook that we see in originalist works like Robert Borks The
Tempting of America and Antonin Scalias A Matter of Interpretation. 8
Despite the implication of his title, Solums own analysis refutes the claim that we are all
originalists now. Who, from the standpoint of his framework, is not a new originalist? First of
all, the old originalists are not. As Solum acknowledges, they reject the public meaning thesis
and the interpretation-construction distinction thesis. 9 For them, interpretation is a matter of
discovering determinative intentions of the framers and construction is illegitimate government
by judiciary. Second, many contemporary originaliststhose who might not style themselves

54
old originalists but who reject the large role that the new originalism recognizes for
constructionare not new originalists. Still, Solum does not exclude these two varieties from the
big tent of originalism. He says that only two of the four commitments are necessary for
originalism: the fixation thesis and the textual constraint thesis. 10 Both of these varieties accept
these two theses. And at one point, he refers to the truism of the fixation thesis and the
mundaneness of the textual constraint thesis.11 Here he implicitly admits just how thin and
capacious these two theses are, and thus how big the tent of originalism is.
Third, despite Solums magnanimous gestures toward reconciliation of the new
originalism with living constitutionalism, he rejects many forms of the latter as beyond the pale.
He criticizes strong forms of living constitutionalism growing out of Legal Realism or Critical
Legal Studies 12 precisely because they are not originalist, even in his capacious sense: they are
pragmatic, instrumentalist, and forward-looking, rejecting even the relatively thin constraints that
the new originalism would require of them. For them, evidently, there is only construction and it
is purely pragmatic, instrumentalist, and forward-looking; interpretation and construction are
radically indeterminate. He attributes to such living constitutionalists the views that the text and
original public meaning do not constrain interpretation and construction; that constitutional
interpretation empowers judges to amend the Constitution; and that justice trumps the
constitutional text. 13 He ridicules many so-called theories of living constitutionalism as not
being real theories but instead pale imitations, mere gestures and hints. 14 In fact, despite the
generally inclusionary tone of Solums work, I have not seen such spirited attacks on living
constitutionalism since reading Borks The Tempting of America and Scalias A Matter of
Interpretation. 15
Thus, when all is said and done, according to Solum himself, we definitely are not all

55
originalists now.
II. WHAT IS THE NEW ORIGINALISM? TAKE TWO: SOLUM
Next, I shall explicate Solums understanding of the new originalism by contrasting it
with Whittingtons (put forth in Chapter 1). Solums account of the old originalism is similar to
Whittingtons. And their accounts of the new originalism are similar in two respects. Solums
new originalism, like Whittingtons, stresses: (1) original public meaning (as contrasted with the
old originalists emphasis on the intention of the framers or their original expected applications)
and (2) the significance of the distinction between interpretation and construction (as contrasted
with the old originalists rejection of construction as illegitimate). 16
But Solums new originalism is significantly different. Whittington developed his new
originalism to replace the old originalists negative reaction against the liberal Warren Court
with a governing constitutional theory for conservative judges in power. Solum, by contrast,
developed his new originalism to overcome the theoretical errors and excesses not only of the
old originalists but also of Legal Realism and Critical Legal Studies. In fact, he wants to
acknowledge the conservative ideology of the old originalists but to distance that from the new
originalism as a constitutional theory. 17
Moreover, Solums new originalism really is a reconstruction to correct the theoretical
flaws in the old originalism. He rejects most of the old originalists conception of constitutional
interpretation as indefensible. 18 He also repudiates the old originalists conception of the
Constitution as practically a code of determinate rules and concrete expected applications. On his
understanding, original public meaning is more abstract, vague, and underdeterminedin part
because he conceives some of the Constitutions commitments as general standards or abstract
principles rather than as concrete, determinate rules. 19 Furthermore, Solum advances a very

56
different understanding of construction than Whittington. For Whittington, at least in his initial
formulation, interpretation is for judges and construction is for legislators and executives. 20 For
Solum, construction is also for judges in developing constitutional doctrine where interpretation
is underdeterminate. 21 Solum implicitly acknowledges this difference when he characterizes
Whittingtons view as the model of construction as politics (as distinguished from Balkins
model of construction as principle): with courts deferring in the construction zone and letting
political institutions do the construction. 22 Below I suggest that there are similarities between
Solums and Balkins conceptions of construction.
The upshot is that Solums new originalism is more amenable to reconciliation with
moral readings than is Whittingtons. In the next three sections, I assess Solums new originalism
in its own right, focusing on the distinction between interpretation and construction, the
normative justifications for originalism, and the misconceived quest for the original public
meaning.
III. THE SIGNIFICANCE OF THE DISTINCTION BETWEEN INTERPRETATION AND CONSTRUCTION
Lets be clear about what Solum claims about the significance of the distinction between
interpretation and construction. In explaining this distinction, he invokes H.L.A. Harts wellknown formulation concerning the core and penumbra. He presents the core as a zone for
interpretation and the penumbra as a zone for construction. He contends that hard cases, by
definition, are underdetermined by interpretation of original public meaning and so require
construction. 23
Furthermore, Solum says that originalism is a theory of interpretation, not a theory of
construction. In developing the interpretation-construction distinction, Solum plainly states:
Originalism itself does not have a theory of constitutional construction. 24 He also states:

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Whereof originalism cannot speak, thereof it must be silent. Even though construction in hard
cases lies beyond interpretation (and thus beyond originalism), he claims that the new originalists
insist that original public meaning should constrain construction. 25
I shall make two general observations that demonstrate how inclusive Solums new
originalism is. First, Solum concedes that much that is important in constitutional law goes on in
the construction zone in deciding hard cases and developing constitutional doctrine. We might
doubt how many important constitutional law questions are resolved through interpretation of
original public meaning (a point to which I return in showing the misconceived quest for the
original public meaning). I suspect that Solum would find greater agreement with his analysis of
interpretation and construction among living constitutionalists and moral readers than among
most conventional originalists. For living constitutionalists and moral readers would agree that
hard cases lie in the construction zone and that interpretation of original public meaning does not
determine the outcomes in these disputes. But old originalists and many other contemporary
originalists (for example, John McGinnis and Michael Rappaport, analyzed in Chapter 3, would
reject these claims as capitulations. Some, like the old originalists, would insist that
interpretation is determinative both in deciding hard cases and developing constitutional
doctrine. Others would deny the necessity or the legitimacy of construction. And some who
accept the legitimacy of construction would go along with Whittington in adopting what Solum
calls the model of construction as politics: they would say that interpretation is for courts and
construction is for legislatures and executives. 26
Second, what Solum says about how construction should proceedhow he proposes to
build out doctrine and decide hard cases in the construction zoneis compatible with a moral
reading. In defending this view, I shall focus on two things he says about originalism in relation

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to construction. One, Solum states: originalists can and should agree that constitutional
construction (as currently practiced) involves a plurality of methodspurposes, structure,
precedent, and all the rest. He rejects the common living constitutionalist argument that the very
existence of multiple modalities shows the impossibility of originalism. He contends instead
that these methods are properly brought to bear on the task of constitutional construction. 27
Thus, he practically makes peace with living constitutionalism concerning the multiple
modalities of argument in the construction zone. Whittington recently has taken a similar
approach in recognizing what he calls pluralism within originalism or how originalist
arguments exist in an environment of pluralism in constitutional interpretation 28 (or, Solum
would insist, construction).
Two, Solum mentions three models of construction as eligible within the new
originalism. 29
!

Construction as politics (associated with Whittington): when judges leave the realm of
constitutional interpretation and enter the construction zone, they defer to the decisions
made by the political processes.

Construction as principle (associated with Balkin): [i]n the construction zone, judges
should aim to create constitutional doctrines that comport with political ideals for which
the general, abstract, and vague provisions of the Constitution aim.

Construction by original methods (inspired by the work of McGinnis and Rappaport but
not their own view): when modern courts engage in constitutional construction, they
should employ the original methods in use when the Constitution was adopted.

Solum does not exactly say which model of construction is the most promising for the new
originalism that he himself proposes. Doing so, I suppose, would be out of keeping with the

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spirit of an ecumenical new originalist manifesto. But there are significant differences between
Whittingtons model of construction as politics and Solums approach to construction. Again, for
Whittington, at least in his initial formulation, interpretation is for judges and construction is for
legislatures and executives. For Solum, by contrast, construction is also for judges in developing
constitutional doctrine where interpretation is underdeterminative. Furthermore, it does not
appear that Solum himself would emphasize construction by original methods. I interpret him as
putting this model forward in the spirit of an inclusive manifesto rather than as advocating it as
the best approach to construction. Finally, there is good reason to believe that Solum thinks that
Balkins model of construction as principle is the most promising approach for the new
originalism that he himself advocates. What is more, Balkins is the most promising model for a
reconciliation of originalism and living constitutionalism; indeed, Balkin calls his new
originalism living originalism. 30
There is also considerable hope for reconciliation between the new originalism and moral
readings regarding construction. First, moral readers like Barber and I deploy a fusion of
approaches in what Solum calls the construction zone. Within such a fusion, we...understand
text, consensus, intentions, structures, and doctrines not as alternatives to but as sites of
philosophic reflection and choice about the best interpretation and construction of our
constitutional commitments. 31 Second, moral readers should embrace Balkins model of
construction as the method of text and principle. In fact, I shall argue in Chapter 6 that Balkins
theory is a moral reading of the Constitution. For Balkin conceives the Constitution as
embodying not only rules but also general standards and abstract principles. He recognizes that
in interpreting these general standards and abstract principles, we have to make moral and
political judgments concerning the best understanding of our commitments; history alone does

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not make those judgments for us in rule-like fashion. 32 Moreover, there are unmistakable
affinities between Balkins commitment to interpret and construct the Constitution so as to
redeem our faith in its promises and aspirations and a moral readings commitment to interpret
and construct the Constitution so as to make it the best it can be. 33
Thus, if Solums new originalism embraces or at least is hospitable to Balkins method of
text and principle 34as an approach to interpretation and constructionit has much in common
with a moral reading.
IV. THE NORMATIVE JUSTIFICATIONS FOR THE NEW ORIGINALISM
As we have seen in examining the originalist premise in Chapter 1, many originalists
practically assume that originalismby definition, or axiomaticallyis the only legitimate
approach to constitutional interpretation. By contrast, Solum acknowledges the need to make
normative arguments for originalism. He stresses three arguments: that originalism is more
compatible with the rule of law and popular sovereignty and is more ruly than competing
theories. 35 But Solums generous and inclusive formulation of the new originalism undercuts all
of these arguments concerning the supposed virtues of originalism over the moral reading.
In making such normative arguments for originalism, the new originalists trade on certain
features of familiar pictures of originalism without acknowledging that they have redrawn those
pictures so as to blur or obliterate those featureswithout acknowledging the concessions that
they have made to living constitutionalists and moral readers criticisms. Once we bring the
concessions to lightas aspects of the inclusiveness of the new originalismwe see that the
new originalists forfeit their claims to these supposed virtues of originalism over the moral
reading. And, once the new originalists make these argumentswith their concessions to moral
readerswe see that they are no longer simply engaged in a quest for the original public

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meaning of the Constitution while avoiding normative judgments of the sort called for by the
moral reading. Instead, we see that they implicitly have conceded the need to make the very
normative judgments that moral readers have insisted upon and that the old originalists have
been at pains to avoid.
First, consider the rule of law/determinacy argument. The general claim is that
originalism promises more determinacy in constitutional interpretation than does the moral
reading and, as such, is more consistent with the rule of law. After all, originalism, even the new
originalism, seeks to discover and enforce the original public meaning of the Constitution. By
contrast, the moral reading requires complex and controversial normative judgments about the
best understanding of abstract constitutional commitments.
Yet Solums concessions that interpretation underdetermines outcomes, and that the
development of doctrine occurs in the construction zone, undermines his rule of law argument
that only originalism guarantees a stable core of constitutional doctrine. 36 Indeed, on his
account, the development of doctrine takes place in the construction zone, and originalism does
not provide a theory of construction. Moreover, Solum concedes that some constitutional
commitments are relatively abstract principles and standards, for example, equal protection,
liberty, cruel and unusual punishment, freedom of speech, and the like. Interpretation of these
abstract principles and standards, however, will not be a matter of doing historical research to
unearth determinate, concrete original public meanings (much less concrete original expected
applications of the framers and ratifiers). It will not be bounded and determinate in the way that
the argument from rule of law/determinacy presupposes. Nor indeed will construction be
bounded in this way. Rather, interpretation and construction of relatively abstract principles and
standards are going to require normative judgments about the best understanding of those

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principles and standards. These are the very judgments which moral readers have insisted are
central to constitutional interpretation and construction and which old originalists have sought in
vain to banish.
Second, consider the argument from popular sovereignty/democracy. The general claim
is that originalism is more democratic than the moral reading because originalism justifies
invalidating actions embodying current majority will (as enacted in the ordinary law of
legislation) in the name of preserving the will of We the People (as embodied in the higher law
of the Constitution) against encroachment. Whereas (so the originalists say) the moral reading
does so in the name of the moral judgments of unelected justices of the Supreme Court. As such,
the argument goes, originalism is ultimately more democratic. Indeed, it is consistent with and
reinforces popular sovereignty.
Yet Solums ideas about how we develop doctrine in the construction zone undermines
his popular sovereignty argument for originalism. For it turns out that We the People when
ratifying the Constitution in 1791 or ratifying the Fourteenth Amendment in 1868 did not adopt
determinative answers to our questions. And so, in constructing doctrine, the new originalists are
not simply following the rules laid down by We the People. Thus, even on Solums account, the
decisions made by the popular sovereign in the past are underdeterminative; to that degree, the
argument for originalism from popular sovereignty is attenuated. The method of construction as
principle is not going to involve resolution of hard cases through historical research concerning
relatively concrete and determinate original public meanings. It is going to require making
normative judgments about the best understanding of our constitutional commitments to
relatively abstract principles and standards. Again, these are the very judgments that moral
readers have insisted are necessary and that old originalists have asserted were illegitimate, if not

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subversive and heretical.
Third, consider the ruliness argument for originalism. The ruliness claim is that
originalism is more rule-like and thus more ruly than living constitutionalism and moral
readings. For originalism claims, again, that constitutional interpretation is a matter of
determining the historical original public meanings of relatively concrete commitments. This is
as it should be under an understanding of the rule of law as a law of rules. 37 Constitutional
interpretation is notthe ruliness argument claimsa matter of making controversial normative
judgments about the best understanding of abstract commitments. It is not a matter of making allthings-considered reasoned judgments about what our commitments and traditions, understood
as living thing[s], have come to when understood in their best light. 38 Nor is constitutional
interpretation a matter of making complex normative and pragmatic judgments after deploying
multiple modalities of constitutional argument. These types of argument and judgmentthe
heart of interpretation and construction for living constitutionalists and moral readershave
been anathema to originalists like Scalia and Bork because they seem to be unruly and to require
complex normative or pragmatic judgments.
Yet, new originalists like Solum, in response to living constitutionalist arguments that
multiple modalities of argument in our constitutional practice refute originalism, now say that
originalists can accept that construction embraces these multiple modalities. Likewise, new
originalists like Whittington now say that (evidently hitherto monistic) originalists can recognize
and accept what he calls pluralism within originalism or how originalist arguments exist in an
environment of pluralism in constitutional interpretation (or, Solum would insist,
construction).
But in making these concessions the new originalists forfeit the ruliness argument for

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originalism over the moral reading. Not just because they let in the multiple modalities in the
first place; but also because they cannot plausibly claim that judges and scholars who work
through and assess the multiple modalities of argument are seeking to discover and enforce the
original public meanings of the Constitution. Instead, they quite plainly are making normative or
pragmatic judgments about the best understandings of our constitutional commitments and
practice. Again, these are the very judgments that the moral readers have insisted were necessary
and that the old originalists have disparaged as illegitimate.
Finally, consider the argument for originalism from fidelity. In The New Originalism,
Whittington argues, The primary virtue claimed by the new originalism is one of constitutional
fidelity, not of judicial restraint or democratic majoritarianism. He contends that the new
originalism does not require judges to get out of the way of legislatures. It requires judges to
uphold the original Constitutionnothing more, but also nothing less. 39
As I observed in Chapter 1, many originalists have claimed a monopoly on concern for
fidelity in constitutional interpretation, yet many leading constitutional scholars have advanced
conceptions of fidelity that are not conventional originalist conceptions. I argue that the
aspiration to fidelity
raises two fundamental questions: Fidelity to what? and What is fidelity? The
short answer to the firstfidelity to the Constitutionposes a further question:
What is the Constitution? For example, does the Fourteenth Amendment embody
abstract moral principles or enact relatively concrete historical rules? . . . The
short answer to the secondbeing faithful to the Constitution in interpreting it
leads to another question: How should the Constitution be interpreted? Does
faithfulness to the Fourteenth Amendment require recourse to political theory to

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elaborate general moral concepts or prohibit it and instead require historical
research to discover relatively specific original understanding? And does the quest
for fidelity in interpreting the Constitution exhort us to make it the best it can be
or forbid us to do so in favor of enforcing an imperfect Constitution? 40
The old originalists answered the first questionFidelity to what?by saying, why of
course fidelity to the intention of the framers or the concrete original expected applications of the
framers and ratifiers. Yet the new originalists, somewhat like the moral readers, answer it by
saying, fidelity to the original public meaning, which includes that of some relatively abstract
principles and standards. The old originalists answered the second questionWhat is fidelity?
with their authoritarian understanding that fidelity commands us to follow the authority of the
past: following our historical practices and the concrete original expected applications of the
framers and ratifiers. The moral readers, by contrast, answer it with their understanding that
fidelity exhorts us to honor our abstract aspirational principles (or to redeem the promise of our
abstract commitments). Fidelity is living up to and realizing the aspirations embodied in our
experiment in self-governance under a scheme of principles, including a framework of general
powers and abstract rights.
The new originalists, with their new arguments and new conceptions, cannot simply
adhere to the old originalist conception of fidelity. Once the new originalists make the reasonable
and inclusive concessions that they have madethat constitutional adjudication (1) includes
interpretation and construction of relatively abstract principles and standards, not merely
interpretation of determinate, concrete rules or terms of art; (2) involves interpretation and
construction through multiple modalities of argument, not simply interpretation through
historical research concerning concrete original expected applications; and (3) requires

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construction that is not originalist and that involves making normative judgments about how to
redeem the Constitutions abstract commitmentsthey have forfeited their arguments that
originalism is superior on the ground of fidelity to the moral reading. For they have implicitly
accepted the moral readings conception of fidelity as requiring complex normative judgments in
order to realize our constitutional commitments and aspirations, or to interpret and construct the
Constitution so as to make it the best it can be. And they have implicitly rejected the old
originalist conception of fidelity as simply following the commands of the framers and ratifiers,
or following the authority of the past.
To recapitulate: the inclusiveness of the new originalismin particular, the arguments
regarding constructionundermines the new originalists normative arguments for originalism
over the moral reading, indeed forfeits the new originalisms supposed comparative virtues.
What is the upshot of my argument? Should the new originalists like Solum not have made these
reasonable, inclusive concessions to the moral reading that conventional originalists have
resisted? Should they have remained doggedly exclusionary, dogmatically insisting on their
superior claim to these virtues and rejecting construction as illegitimate? Most certainly not. My
point is rather that the new originalists, having made these concessions, should now also
acknowledge that they are engaged in a moral reading of the Constitution. To Solums question,
Are we all originalists now?, I not only answer I hope not but also aim to suggest the extent
to which we are all moral readers now.
So far, I have focused on the first of Solums claims about what is distinctive about the
new originalism: the significance of the distinction between interpretation and construction.
Now, I shall turn to the second of his claims: the significance of the movement from intention
of the framers to original public meaning, raising some doubts about the quest for the original

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public meaning.
V. THE MISCONCEIVED QUEST FOR THE ORIGINAL PUBLIC MEANING
The inspiration for the title of this section is Paul Brests classic article, The
Misconceived Quest for the Original Understanding. Solum refers to Brests article at several
points. 41 The new originalists may have reconceived the quest of the old originalistsfrom
intention of the framers to original public meaningbut the new quest is likewise misconceived.
The quest for the original public meaning is misconceived because on most important
provisions, there will not be a definitive original public meaning that will be useful in resolving
our disagreements, much less resolving hard cases. Let me give a hypothetical example of
constitutional amendment and interpretation. Lets imagine that, in the near future, the Supreme
Court overturns Lawrence v. Texas 42which had recognized a right of gays and lesbians to
intimate association or sexual autonomyeven as our constitutional culture has accepted it, and
has come not merely to tolerate but indeed to respect gays and lesbians as equal citizens. Lets
imagine that We the People then amend the Constitution by adopting the following TwentyEighth Amendment: Well-ordered liberty being necessary to the happiness of a free state, the
right to autonomy shall not be infringed.
How would debates about the original public meaning of the Twenty-Eighth Amendment
likely proceed? Lets distinguish two quite different understandings, which parallel recognizable
disagreements between originalists and moral readers. On the one hand, originalists like Scalia,
who want to construe constitutional language specifically, might say that the original public
meaning was simply, specifically, and exclusively to reinstate the narrow holding in Lawrence.
Such originalists might say that the Amendment protects only the right of gays and lesbians to
engage in deviate sexual intercourse, as the Texas statute invalidated in Lawrence had put it. 43

68
Or, the right of gays and lesbians to engage in homosexual sodomy, as Justice White had put it
in Bowers v. Hardwick, 44 which was overruled in Lawrence. On their view, the Amendment
would be no more abstract a commitment to a right to autonomy than that. They would hold this
view, not because they made an objective historical inquiry into original public meaning as a
matter of empirical fact, 45 but because of prior jurisprudential assumptions and commitments
about what an original public meaning must beand about the character of the Constitution,
constitutional interpretation, and constitutional amendment. On their view, that evidently abstract
language in the Amendment simply has to embody specific meanings.
On the other hand, moral readers, who conceive the Constitution as a charter of abstract
commitments, would likely say that the original public meaning was nothing less than to ratify
the right to autonomy that the Supreme Court had developed through the line of cases from
Meyer and Pierce on through Griswold, Roe, Casey, and Lawrence. 46 Moreover, they would
claim that the original public meaning was to authorize the Court to go on as it had before in
these cases elaborating our basic commitment to a right to autonomy. Indeed, they might go
further and claim that the Constitution, properly interpreted, should protect whatever rights of
autonomy we and the Court decide over time are essential to the concept of well-ordered liberty
and autonomy. They, too, would take this view, not because they made an objective historical
inquiry into original public meaning as a matter of empirical fact, but because of prior
jurisprudential assumptions and commitments about the character of the Constitution,
constitutional interpretation, and constitutional amendment. On their view, that evidently abstract
language in the Amendment simply has to embody abstract commitments.
Lets observe that there would be no independent original public meaningas a matter of
historyto which either side could resort in order definitively to resolve their disagreements.

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Proponents of both understandings of the Twenty-Eighth Amendment would claim that their
understandings were more faithful to the original public meaning. There would not be some
definitive original public meaning of the words right to autonomy out there in our
constitutional culture that would resolve our disputesany more than there is a core public
meaning of a right to autonomy out there right now. Furthermore, there is no lawyerly term of
art, right to autonomy, to which we could resort to resolve disagreement over the meaning of
the right to autonomy. Those who are learned in the law vehemently disagree among themselves
about italong the lines sketched abovejust as citizens generally do. So likewise it is with the
Equal Protection Clause and the Due Process Clause. The same goes for the Privileges or
Immunities Clause. Ditto the First Amendments protections of freedom of speech, freedom of
the press, and freedom of religion. So it is and ever shall be with significant constitutional
provisions.
To make a further point about the misconceived quest for the original public meaning, I
shall analyze the interpretation of the Privileges or Immunities Clause in Slaughter-House
Cases. 47 Many constitutional scholars and judgesincluding liberals and conservatives alike,
originalists along with moral readersbelieve that Slaughter-House was wrongly decided, a
travesty. And Ill bet that many, if they had a chance to overrule five decisions of the U.S.
Supreme Court, would include Slaughter-House on their list. But I want to ponder for a moment
the likely consequences of overruling Slaughter-House. Lets imagine that we overrule
Slaughter-House and commit to return to the original public meaning of the Privileges or
Immunities Clause. And lets hypothesize that we agree that the original public meaning of the
Privileges or Immunities Clause was that it was to protect the fundamental rights which belong
of right to the citizens of all free governments (quoting Justice Bushrod Washingtons famous

70
formulation). 48
What would be the likely consequence of overruling Slaughter-House and committing to
carrying out the original public meaning so conceived? In all likelihood, precious little would
change. The Supreme Courts gutting of the Privileges or Immunities Clause in Slaughter-House
did not stop the Court from interpreting the Fourteenth Amendment to protect fundamental rights
essential to national citizenship (of the sort that by hypothesis it was the original public meaning
of the Privileges or Immunities Clause to protect). The Court turned to the word liberty in the
Due Process Clause and to the Equal Protection Clause (the fundamental rights and interests
strand) to do so.
For years, people have argued for reviving the Privileges or Immunities Clause, since its
language (and original public meaning) more comfortably can bear the work of protecting
fundamental rights essential to national citizenship. They also have argued that doing so would
avoid common objections to using the Due Process and Equal Protection Clauses to protect such
rights. The objections to using the Due Process Clause to do so are familiar: its the Due Process
Clause (not the Due Liberty Clause). On this view, the government may treat everyone poorly,
provided it follows established procedures for doing so. The objections to using the Equal
Protection Clause to protect fundamental rights essential to national citizenship are also familiar:
its the Equal Protection Clause (not the Just Protection Clause). On this view, the government
could satisfy its requirements by treating everyone equally unjustly.
What would happen if we were to overrule Slaughter-House and revive the Privileges or
Immunities Clause as an alternative basis for protecting fundamental rights essential to national
citizenship? Lets imagine that Balkin, a new originalist concerned with fidelity to the original
public meaning of the Privileges or Immunities Clause, were to propose that we reconceive all of

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the substantive due process and fundamental rights equal protection cases as instead
interpretations or constructions of the Privileges or Immunities Clause. (In fact, he has made
such an argument. 49)
I imagine that some readers are thinking that originalists like Scalia could never again
object to protecting substantive fundamental rights on the ground that the Due Process Clause is
the Due Process Clause. 50 For the Privileges or Immunities Clause does not contain any
language to suggest that it would protect only processual fundamental rights. And I suppose that
some readers are thinking as well that Scalia could never again object to protecting
unenumerated fundamental rights as such, on the ground that they are unenumerated. 51 After all,
the Privileges or Immunities Clause does not purport to enumerate the fundamental rights
essential to national citizenship, such that we might infer that if an asserted fundamental right is
not enumerated it is not protected (leaving aside the Ninth Amendment, which states that The
enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people).
Well, think again. I daresay that Scalia would still object that because the Privileges or
Immunities Clause does not enumerate the rights it protects, justices are obligated to ignore it, to
recall Bork, as if its meaning had been obliterated past deciphering by an inkblot. 52 And I
daresay that Scalia would argue that the Privileges or Immunities Clause protects only
processual rightshe would argue that the character of our democratic system entails that, in the
absence of express constitutional provision, the Constitution protects only processual rights. He
would read the evidence of the original public meaning through the lens of his prior
jurisprudential assumptions and commitments about the character of our constitutional rights (as
enumerated and processual) as well as about the character of interpretation (to be interpretable, a

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provision must enumerate its contents and it must be rule-like rather than abstract principle-like).
And so, notwithstanding an overruling of Slaughter-House, the arguments about what
fundamental rights of national citizenship the Constitution protects through the Due Process
Clause, the Equal Protection Clause, and the Privileges or Immunities Clause would go on much
as before.
I want to make a final point about what the world probably would look like if we were to
overrule Slaughter-House, revive the Privileges or Immunities Clause, and commit to carrying
out its original public meaning. Justice Thomas indicated his openness to doing just that in
dissent in Saenz v. Roe. 53 Indeed, he stated there that Slaughter-Houses gutting of the Privileges
or Immunities Clause has contributed to what he sees as the disarray of Fourteenth Amendment
jurisprudence. As I interpret his dissent, he would overrule all of the substantive due process
cases, overrule all of the fundamental rights equal protection cases, and interpret the Privileges or
Immunities Clause in light of his conception of its original public meaning. What do you suppose
Thomas would interpret the Privileges or Immunities Clause to protect? I would expect primarily
economic liberties of the sort Justice Field in dissent in Slaughter-House expected it to protect,
and of the sort that the Supreme Court protected under the Due Process Clause during the era of
Lochner. 54
The larger point here, again, is that there is no definitive original public meaning of the
Privileges or Immunities Clause that, if only we could recover it, would enable us to proceed in
constitutional interpretation or construction without the disagreements that we presently have.
Conservatives like Thomas would argue for one set of privileges or immunities of national
citizenship. Liberals would argue for another. Both would do so in the garb of fidelity to original
public meaning. Both would argue that their interpretations are, as Balkin puts it, necessary to

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redeem the promises of the Constitution. Disagreement about what fundamental rights are
essential to national citizenship would continue, much as before, only now under the Privileges
or Immunities Clause as well as under the Due Process and Equal Protection Clauses.
Disagreement about the basic character of the Constitution, constitutional interpretation, and
constitutional amendment would continue much as before. The debate, under the guise of
arguments about fidelity to original public meaning, is a debate among competing moral readings
of the Constitution. Any quest for original public meaning that seeks to deny or avoid a moral
reading is misconceived.
VI. THE SIGNIFICANCE OF THE MOVEMENT FROM INTENTION OF THE FRAMERS
TO ORIGINAL PUBLIC MEANING

To this point, I have characterized the movement from intention of the framers to
original public meaning optimistically, pointing out that to the extent the new originalists
acknowledge that we might conceive original public meaning abstractly, the new originalism
might bear affinities to a moral reading. In this section, I shall acknowledge that this move to
original public meaning is not necessarily more hospitable to a moral reading. We can see this
clearly in the jurisprudence of Justice Scalia. Scalia is not a new originalist in Solums sense
since he rejects constructionbut he is a proponent of original public meaning originalism,
which the new originalists embrace.
In some instances, I believe that the move within originalism from intention of the
framers to original public meaning is largely a public relations moveone that seems to
acknowledge the flaws in the old originalism, yet to leave the actual practice of originalism
unaffected. That is, originalists officially state that their quest is for the original public meaning.
But they persist in dredging up what they see as concrete original expected applications of the

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framers and ratifiers or they rewrite evidently abstract commitments like privileges or
immunities or freedom of speech into determinate, lawyerly terms of art (commitments
concerning which, ironically, there is no original public meaning, only technical lawyerly
meanings beyond the ken of the public). As will be discussed in Chapter 6, Balkin has
demonstrated this point effectively.
In other instances, however, the move to original public meaning does affect the practice
of originalism. For example, in Justice Scalias jurisprudence, it moves originalism in a
conservative direction. Here I mean conservative not simply in a substantive political sense of
supporting the outcomes conservatives favor, but also in a Burkean sense of conceiving original
public meaning as being the deposit of historical practices rather than abstract normative
commitments that might be critical of or at any rate different from those practices. We see this
clearly in Justice Scalias dissenting opinion in the Virginia Military Institute case, United States
v. Virginia, 55 and his opinion of the Court in the right to bear arms case, District of Columbia v.
Heller. 56
On Justice Scalias view, the original public meaning of the Equal Protection and Due
Process Clauses of the Fourteenth Amendment is not the ordinary moral understandings of
citizens in 1868 concerning their normative commitments to abstract and contested principles
like equality and liberty. Rather, it is the deposit of historical practices embodied in the statute
books and common law as of 1868. Scalia articulates this conception in his dissent in Virginia
(in the context of equal protection) and in his plurality opinion in Michael H. v. Gerald D. (in the
setting of due process ). 57
According to Scalia, the point of constitutional commitments is to embody historical
practices so conceived. And so, for example, the original public meaning of the Equal Protection

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Clause is not that of an abstract, normative principle that condemns class legislation or the
maintenance of a caste system that reduces or maintains certain classes of people in the status of
an inferior caste beneath full citizenship: whether on the basis of race, sex, or sexual orientation.
Instead, for Scalia, the Equal Protection Clause embodies a deposit of historical practices: if
single-sex educational institutions like Virginia Military Institute (VMI) were not viewed as an
unconstitutional practice in 1868, and there has been an historical practice of maintaining such
single-sex educational institutions ever since, then the operation of VMI as a single-sex military
college simply does not violate the Constitution.
To elaborate: In dissent in Virginia, Scalia objects that [the Court] counts for nothing the
long tradition, enduring down to the present, of mens military colleges supported by both States
and the Federal Government. 58 Lets contrast Scalias view with Justice Ginsbergs view in the
opinion of the Court concerning history and tradition in interpreting the Equal Protection Clause.
Lets distinguish between two competing conceptions of tradition: historical practices (equal
protection includes whatever was protected specifically in the statute books or recognized
concretely in the common law when the Fourteenth Amendment was adopted in 1868) versus
aspirational principles (equal protection embodies principles to which we as a people aspire, and
for which we as a people stand, whether or not we have always or yet realized them in our
historical practices, statute books, or common law). 59 Which conception does Scalia embrace?
Clearly the former, historical practices. Which conception does Ginsburg embrace? Clearly the
latter, aspirational principles that are critical of our longstanding historical practices.
Furthermore, lets contrast Ginsburgs and Scalias attitudes toward the longstanding historical
practice of excluding women from VMI. Ginsburg views this as longstanding sex discrimination
in violation of the Constitution, which aspires to full citizenship stature for women as well as

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men. 60 By contrast, Scalia writes that longstanding national traditions [are] the primary
determinant of what the Constitution means. Indeed, he argues that the Courts interpretation of
the Equal Protection Clause cannot supersedeand indeed ought to be crafted so as to reflect
those constant and unbroken national traditions that embody the peoples understanding of the
Equal Protection Clause. 61 In short, the fact that we have a longstanding historical practice of
excluding women from VMI is practically conclusive evidence that the exclusion of women
from VMI does not violate the Equal Protection Clause.
For moral readers such as Justice Brennan, Justice Ginsburg, or Justice Stevens, the point
of adopting and amending the Constitution is not to embody longstanding historical practices but
to transform them in pursuit of our constitutional aspirations to normative principles like equality
and liberty. Brennan wrote: Interpretation must account for the transformative purpose of the
text. Our Constitution was not intended to preserve a preexisting society but to make a new one,
to put in place new principles that the prior political community had not sufficiently recognized.
He continued: Thus, for example, when we interpret the Civil War Amendments...we must
remember that those who put them in place had no desire to enshrine the status quo. Their goal
was to make over their world.... 62 That is Brennans conception of the abstract, aspirational
original public meaning of the Civil War Amendments, including the Fourteenth Amendment.
For Brennan, Ginsburg, and Stevens, the Fourteenth Amendment commits us to equal protection
on our best understanding, not equality as it was reflected in the common law and statute books
in 1868, with all manner of racist, sexist, and heterosexist expectations and presuppositions. 63 It
also commits us to liberty on our best understanding, not liberty as it was manifested in the
common law and statute books as of 1868. 64 As they see it, originalists seeking to enforce Scalialike conceptions of original public meaning eviscerate the Fourteenth Amendments

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transformative purposes.
To take another example, in Heller, Scalia presupposeswith his version of original
public meaning originalismthat the point of adopting the Second Amendment was to codify a
preexisting common law individual right to bear arms for self defense as recorded in
Blackstone. 65 He presupposes this irrespective of (and in the face of) the language of the Second
AmendmentA well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringedwhich suggests that its purpose
instead is to preserve well regulated state militias. And he presupposes this irrespective of the
arguments in the debates concerning the reasons for adopting the Amendment, which suggest
that its purpose was to protect state militias from being abolished by the federal government. 66
Scalia construes the purpose of the Amendment in light of his prior jurisprudential
presupposition that constitutional commitments are the deposit of historical practices. The
meaning of the operative clause of the Second Amendment, 67 because of his prior
jurisprudential presuppositions about the point of adopting a constitutional amendment
protecting rights, just has to be to codify the common law right to bear arms for self-defense.
Justice Stevens, who takes a purposive approach to constitutional interpretation in general
and to the Second Amendment in particular, begins with the preamble to the AmendmentA
well regulated Militia, being necessary to the security of a free Stateand construes the right to
bear arms in light of that stated purpose. 68 He observes that the language of the Amendment says
nothing about a common law individual right to bear arms for self-defense. He further observes
that the arguments in the debates confirm that the purpose in adopting the Amendment was to
protect against federal abolition of state militias. Furthermore, just as Stevens has rejected
Scalias idea that the purpose of the Fourteenth Amendments Due Process Clause is to embody

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common law practices regarding liberty, so too he rejects the idea that the purpose of the Second
Amendment is to codify common law practices concerning an individual right to bear arms for
self-defense. Instead, for Stevens, we have to ask what purpose is expressed in the actual
language of the Second Amendment and whether the debates concerning the reasons for
adopting the Amendment confirm that stated purpose.
In criticizing Stevenss argument, Scalia writes:
Justice Stevens relies on the drafting history of the Second Amendmentthe
various proposals in the state conventions and the debates in Congress. It is
dubious to rely on such history to interpret a text that was widely understood to
codify a pre-existing right, rather than to fashion a new one. 69
What is going on here? As discussed above, many have distinguished between intention of the
framers originalism and original public meaning originalism, which is concerned to discover and
follow the original public meaning of the words of the document (irrespective of what the
framers might have intended). Here, Scalia is claiming to be an original public meaning
originalist, and he is claiming that the original public meaning of the Second Amendment was to
codify a preexisting common law right, which he claims was an individual right to bear arms for
self-defense, not to fashion a new right.
Furthermore, in our own time, disagreement about the meaning of our basic constitutional
commitments, including constitutional rights protected by the Second Amendment, is deep and
pervasive. Yet Justice Scalia writes: [J]ustice Stevens view...relies on the proposition,
unsupported by any evidence, that different people of the founding period had vastly different
conceptions of the right to keep and bear arms. That simply does not comport with our
longstanding view that the Bill of Rights codified venerable, widely understood liberties. 70 Is

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this a sound presupposition about constitutional commitments? That there cannot be different
conceptions of them or disagreement about their meaning? If one looks at all of the historical
evidence presented in the three opinions in Heller, isnt it very much open to question whether
the Second Amendment was widely understood to protect the liberties that Scalia insists upon?
Again, Scalia takes this view because of his prior jurisprudential presupposition that this just has
to be the nature of constitutional commitments, irrespective of the language of the Constitution
and of the evidence of disagreement concerning its meaning. That is why Scalia rejects, as
dubious, any arguments from the debates concerning the reasons for adoption of the Second
Amendmentthe arguments that Stevens sees as central to understanding the purpose of the
Amendment. This is also why Scalia rejects the very ideacentral to Brennans, Ginsburgs, and
Stevenss viewsthat we amend the Constitution precisely to put in place new principles or to
fashion new [rights].
To suggest just how radically conservative Scalias presuppositions about original public
meaning are, I shall formulate two hypotheticals involving constitutional amendments protecting
the right to bear arms, with two sets of evidence concerning the reasons for adopting the
amendment. Each hypothetical amendment contains the same text: A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed. Is this some kind of joke? Dont I know that the Second Amendment
already consists of this very language? I do. As will soon become clear, thats part of the point of
the exercise.
The first hypothetical goes like this. It is 1791. James Madison proposes the foregoing
language of the amendment. He says:
I know that there is a common law individual right to bear arms for self-defense

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as recorded in Blackstone. Forget that common law right. And forget Blackstone.
Well leave it to the common law to protect that right. We must never forget that
it is a Constitution we are making and amending. 71 We are making over the
world 72embarking upon an experiment in constitutional self-government by
reflection and choice 73not codifying common law rights or enshrining the
deposit of historical practices. What we are concerned about here is the states
right to maintain a well regulated militia, and we are concerned that without this
amendment the federal government might abolish state militias. And so, to make
it as clear as language possibly can, we are going to insert a preamble at the
beginning of the amendment: A well regulated Militia, being necessary to the
security of a free State. This language will make it clear beyond doubt that we
are not here talking about any common law individual right to bear arms for selfdefense. No one will ever be able to gainsay that the amendment is instead
concerned with protecting the states right to maintain a well regulated militia.
In this hypothetical, Madison drafts the amendment and is the only one who speaks about its
purpose and meaning at the convention. Immediately after his speech, which receives a standing
ovation, the delegates unanimously propose the amendment. It is subsequently ratified.
I daresay that, even under this hypothetical, Scalia would interpret the original public
meaning of the amendment as being to codify the common law individual right to bear arms for
self-defense. He would advance this interpretation, not because of any reason given in support of
it at the time of the framing and adoption of the amendment. He would advance it instead
because of his prior jurisprudential presupposition that constitutional rights, as such, must codify
known, preexisting rights, not fashion new ones. Again, with this jurisprudential preconception,

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Scalia blunts the transformative purpose of constitution making and amendment, and renders
vain any attempt to make over the world or fashion new rights that are not longstanding
common law rights.
Here is the second hypothetical. It is 2018. In the ten years since the Supreme Court
decided Heller, Heller itselftogether with a series of school massacres and assassinations of
presidents and members of Congress who fought for gun control measuresprovokes a backlash
leading to a constitutional amendment. The supporters of gun control in the House and Senate
led by the biggest critics of Hellers reading of the Second Amendment as protecting an
individual right to bear arms for self-defense rather than the states right to maintain a well
regulated militiaas a rebuke to the Courts interpretation in Heller, reaffirm the very language
of that amendment through the constitutional amendment process. During the process of
amendment, they hold elaborate and extensive debates concerning the reasons for adopting the
amendment and reaffirming the language of the Second Amendment, emphasizing the aim to
repeal Hellers interpretation of that very language. They engage in extensive criticism of
Scalias opinion in Heller and extensive praise of Stevenss and Breyers dissenting opinions.
They also carry out extensive discussion to establish beyond doubt that the purpose of the
preamble is to make it as clear as words can make it that this amendment is to protect the states
right to maintain a militia, not any common law individual right to bear arms for self-defense.
I daresay that, even under this second hypothetical, Scalia likely would interpret the
original public meaning of the newly adopted amendment as being to codify the common law
individual right to bear arms for self-defense. I imagine that he would reject, as dubious, any
recourse to the original public meaning as manifested in the debates concerning the purposes of
adopting the language of the Amendment. I would expect him to stand firm in his contention that

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the text was to codify a pre-existing right, rather than to fashion a new one.
My larger point with both of these hypotheticals is that Scalias approach to original
public meaning blunts the transformative purpose of constitution making and amendmentas
we have also seen in his approach to interpreting the Fourteenth Amendments Equal Protection
and Due Process Clauses. It does so because of his prior jurisprudential presuppositions
concerning (1) what counts as original public meaning and (2) what the purpose of constitution
making and amendment is. Scalias approach to original public meaning historicizes rights.
Under his approach, constitution makers and amenders are not fashioning abstract commitments
to rights whose meaning must be elaborated over time to determine our best understanding of
them in the context of problems as they arise. Instead, they are codifying preexisting rights
whose content is known through their deposit in historical practices: the common law and statute
books at the time of the ratification of the language. Thus, the movement from intention of the
framers originalism to original public meaning originalism not only blunts the transformative
possibility of constitutional amendment but also negates the possibility of synthesizing original
public meaning originalism with moral readings.
VII. THE PROSPECTS FOR RECONCILIATION BETWEEN THE NEW ORIGINALISM
AND LIVING CONSTITUTIONALISM OR MORAL READINGS

What are the prospects for reconciliation between originalism and living
constitutionalism? There is no hope regarding the old originalism and even reasonable versions
of living constitutionalism. Again, according to Solum, the old originalists believe that
interpretation is determinative and construction is illegitimate. Solum holds out the possibility of
a compatibilism between the new originalism and certain reasonable versions of living
constitutionalism. 74 There would be agreement in broad terms concerning interpretation in the

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core and construction in the penumbra. There might be disagreement about how construction
should be carried out. But there might be broad agreement about our constitutional practice as
including multiple modalities as mentioned above. And there might be broad agreement in
support of Balkins living originalist method of text and principle.
The prospects for reconciliation of the new originalism and moral readings might be
more promising. Again, many versions of living constitutionalism, with their pragmatic,
instrumentalist, and forward-looking attitudes, along with their views of radical indeterminacy,
are deeply at odds with originalism, however conceived. But moral readers like Dworkin and me
reject the pragmatic, instrumentalist, and forward-looking attitudes, as well as the radical
indeterminacy, of such versions of living constitutionalism. 75 In these respects, such moral
readers have affinities with Solums new originalism. And I have already shown the general
affinities between the new originalism and moral readings concerning interpretation and
construction.
As evidence that the new originalists might view moral readers as good candidates for
reconciliation, consider the following. Balkins living originalism, a form of new originalism, is
also a moral reading (as I argue in Chapter 6). Furthermore, Whittington has interpreted
Dworkins theory as a form of abstract originalism. 76 Solum himself, in criticizing what he calls
Dworkins view of the unity of interpretation, constructed an alternative Dworkin who for
all intents and purposes is a new originalist who accepts the interpretation-construction
distinction. 77 And Barber and I allowed the characterization of our philosophic approach to
constitutional interpretation as an abstract originalism (notwithstanding my hope that we are not
all originalists now). 78
I venture to suggest that Solums reasonable, programmatic, and inclusive manifesto has

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made the new originalism the best it can be; as such, it may be amenable to reconciliation with a
moral reading that interprets the Constitution so as to make it the best it can be.
VIII. THE MISSING ARGUMENT FROM FIDELITY TO OUR IMPERFECT CONSTITUTION
Finally, I want to make explicit the missing (or implicit) argument for the new
originalism from constitutional perfectionism: an argument rooted in the aspiration to fidelity to
our imperfect Constitution. Making this argument will further demonstrate the promise for a
reconciliation of the new originalism and moral readings.
Balkin stresses a normative argument for his new originalism from the aspiration to
fidelity to our imperfect Constitution. He recognizes that the Constitution in practice is highly
imperfect. Yet he argues that we should interpret it so as to redeem our faith in its promises and
aspirations. 79 Solum should make such an argument as well. A form of this argument may be
implicit in his discussion of the Constitution, imperfections, and injustice. As he sees it, we have
an imperfect Constitution. But it is not so unjust that we should override the text of the
Constitution in the name of doing justice. Instead, the Constitution is reasonably just. 80 I shall
suggest that the type of theory he needs for this very circumstance of a reasonably just but
imperfect Constitution is what I call a theory of fidelity to our imperfect Constitution. Such a
theory aspires to interpret and construct the Constitution so as to make it the best it can be (as
Dworkin and I put it), or so as to redeem the promises of the (abstractly conceived) original
public meaning (as Balkin puts it). A new originalism that incorporated such a conception of
fidelity would be a new originalism that would be compatible with the best form of living
constitutionalismas we see it is in Balkins living originalism. Such a new originalism also
would be compatible with a moral reading of the sort that Dworkin has developed, that Barber
and I have advanced, and that I am pursuing in this book. Solum cites my piece that previews

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this argument: Fidelity to Our Imperfect Constitution. 81 But he does not explicitly do anything
with such an argument.
Solum might object that making such an argument would make the new originalism a
form of perfectionism (a type of theory against which originalism defines itself, as I have shown
in Chapter 1). But we should distinguish, with Cass Sunstein, between first-order perfectionism
and second-order perfectionism. First-order perfectionism (illustrated by Dworkins and my
theories) argues directly for interpreting or constructing the Constitution so as to make it the best
it can be. Second-order perfectionism argues instead that adopting a particular theory of
interpretation or constructionwhatever it is, originalism, minimalism, perfecting processes, or
a moral readingwill make the Constitution the best it can be. 82
Even if Solum is not prepared to sign on with Dworkin and me in first-order
perfectionism, he should be willing to sign on with Sunstein and make a second-order
perfectionist case for his theory. Indeed, such an argument is implicit in what he says in making
normative arguments for originalism from the rule of law and popular sovereignty. He strongly
suggests that applying the new originalism will put our Constitution and constitutional practice
in their best light. Solum should make the argument explicit: adopting the new originalism and
applying it will make the Constitution and our constitutional practice the best they can be.
At a minimum, Solum could leave it at that. Or, he could embrace Balkins method of
text and principle, a first-order perfectionist approach that would interpret and construct the
Constitution so as to redeem the promises of its commitments. In doing so, he would put forward
a new originalism that is compatible with a moral reading or Constitution-perfecting theory. That
would be the best new originalist approach for pursuing the aspiration to fidelity to our imperfect
Constitution.

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NOTES TO CHAPTER TWO
1. ROBERT W. BENNETT AND LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE
(2011) [hereinafter SOLUM].
2. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION
2-3 (1996); SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE
BASIC QUESTIONS xiii, 155-70 (2007).
3. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 2, 7-11.
4. Id. at 1.
5. Id. at 61.
6. Id. at 4, 5.
7. JACK M. BALKIN, LIVING ORIGINALISM (2011).
8. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
(1990); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
(Amy Gutmann ed., 1997).
9. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1 at 36, 53-54.
10. Id. at 35-36.
11. Id. at 53, 54.
12. Id. at 40, 50, 74.
13. Id. at 19-20, 47-49, 60.
14. Id. at 74-75.
15. BORK, TEMPTING OF AMERICA, supra note 8, at 167; SCALIA, A MATTER OF INTERPRETATION,
supra note 8, at 144-49.
16. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 36.

87

17. Id. at 64.

18. Id. at 7-11, 20-22.
19. Id. at 22, 24-25.
20. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND
CONSTITUTIONAL MEANING 1-19 (1999).
21. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 22-24.
22. Id. at 69-70.
23. Id. at 22-23 (discussing H.L.A. HART, THE CONCEPT OF LAW 121-32 (1961)) .
24. Id. at 60. For fuller development of the distinction between interpretation and construction,
see Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM LAW
REVIEW 453 (2013).
25. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 26.
26. Id. at 20-22, 69-70.
27. Id. at 59-60 (alluding to PHILIP C. BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE
CONSTITUTION (1982) for the idea of multiple modalities of constitutional interpretation). See
also Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation,
100 HARVARD LAW REVIEW 1189 (1987) (distinguishing five forms of argument in constitutional
interpretation).
28. Keith E. Whittington, On Pluralism within Originalism, in THE CHALLENGE OF
ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION 70 (Grant Huscroft & Bradley W.
Miller eds., 2011).
29. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 69-70.
30. BALKIN, LIVING ORIGINALISM, supra note 7.

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31. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 2, at 190.

32. BALKIN, LIVING ORIGINALISM, supra note 7, at 23-34.
33. RONALD DWORKIN, LAWS EMPIRE 255 (1986).
34. For Solums fullest assessment of Balkins project, see Lawrence B. Solum, Faith and
Fidelity: Originalism and the Possibility of Constitutional Redemption, 91 TEXAS LAW REVIEW
147 (2012) (reviewing BALKIN, LIVING ORIGINALISM, supra note 7, and JACK M. BALKIN,
CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011)).
35. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 36-38, 38-42, 42-44.
36. Id. at 40.
37. I am alluding to Justice Scalias famous article, The Rule of Law as a Law of Rules, 56
UNIVERSITY OF CHICAGO LAW REVIEW 1175 (1989).
38. I am alluding to the joint opinion of Justices OConnor, Kennedy, and Souter in Planned
Parenthood v. Casey, 505 U.S. 833, 848-49 (1992), embracing Justice Harlans approach to
constitutional interpretation in Poe v. Ullman, 367 U.S. 497, 543, 549 (1961) (Harlan, J.,
dissenting).
39. Keith E. Whittington, The New Originalism, 2 GEORGETOWN JOURNAL OF LAW & PUBLIC
POLICY 599, 608-09 (2004).
40. James E. Fleming, Fidelity to Our Imperfect Constitution, 65 FORDHAM LAW REVIEW 1335,
1335 (1997).
41. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 8, 14, 160 (referring to Paul Brest,
The Misconceived Quest for the Original Understanding, 60 BOSTON UNIVERSITY LAW REVIEW
234 (1980)).
42. 539 U.S. 558 (2003).

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43. Id. at 563.

44. 478 U.S. 186, 191 (1986).
45. I reject the claim that original public meaning is a matter of empirical fact. See, e.g., Randy
E. Barnett, The Gravitational Force of Originalism, 92 FORDHAM LAW REVIEW 411 (2013).
46. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Planned
Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence. See JAMES E. FLEMING & LINDA C.
MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES 244-67 (2013)
(analyzing this line of cases protecting a rational continuum of ordered liberty).
47. 83 U.S. 36 (1873).
48. Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3,230) (Washington, J.,
riding circuit).
49. BALKIN, LIVING ORIGINALISM, supra note 7, at 183-219.
50. See, e.g., Lawrence, 539 U.S. at 592 (Scalia, J., dissenting).
51. See, e.g., Casey, 505 U.S. at 980 (Scalia, J., concurring in the judgment in part and dissenting
in part).
52. BORK, TEMPTING OF AMERICA, supra note 8, at 166.
53. 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting).
54. Slaughter-House, 83 U.S. at 96-97 (Field, J., dissenting); Lochner v. New York, 198 U.S. 45
(1905).
55. 518 U.S. 515, 566 (1996) (Scalia, J., dissenting).
56. 554 U.S. 570 (2008).
57. 491 U.S. 110 (1989).

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58. Virginia, 518 U.S. at 566 (Scalia, J., dissenting).

59. For elaboration of this distinction, see JAMES E. FLEMING, SECURING CONSTITUTIONAL
DEMOCRACY: THE CASE OF AUTONOMY 112-16 (2006).
60. Virginia, 518 U.S. at 532.
61. Id. at 568, 570 (Scalia, J., dissenting).
62. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27
SOUTH TEXAS LAW REVIEW 433, 438 (1986).
63. See, e.g., Shelby County v. Holder, 133 S.Ct. 2612, 2637 (2013) (Ginsburg, J., dissenting)
([T]he Civil War Amendments used language [that] authorized transformative new federal
statutes to uproot all vestiges of unfreedom and inequality (quoting AKHIL REED AMAR,
AMERICAS CONSTITUTION: A BIOGRAPHY 361, 363, 399 (2005))); Reva B. Siegel, Equalitys
Frontiers: How Congresss Section 5 Power Can Secure Transformative Equality (as Justice
Ginsburg Illustrates in Coleman), 122 YALE LAW JOURNAL ONLINE 267 (2013).
64. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 743-44 (1997) (Stevens, J., concurring in
the judgment) ([T]he source of [the] right to refuse treatment was not just a common-law rule.
Rather, this right is an aspect of a far broader and more basic concept of freedom that is even
older than the common law. This freedom embraces not merely a persons right to refuse a
particular kind of unwanted treatment, but also her interest in dignity, and in determining the
character of the memories that will survive long after her death.).
65. District of Columbia v. Heller, 554 U.S. 570, 593-97 (2008).
66. Heller, 554 U.S. at 637 (Stevens, J., dissenting).
67. Id. at 592-95 (majority opinion).
68. 554 U.S. at 640-44 (Stevens, J., dissenting).

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69. 554 U.S. at 603.

70. Id. at 604-05.
71. I am alluding, of course, to Chief Justice John Marshalls famous statement in McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 317, 407 (1819).
72. I am alluding to Brennan, Contemporary Ratification, supra note 62, at 438.
73. I mean to evoke a famous line from THE FEDERALIST NO. 1, at 33 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).
74. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 67-69.
75. See DWORKIN, FREEDOMS LAW, supra note 2; BARBER & FLEMING, CONSTITUTIONAL
INTERPRETATION, supra note 2.
76. Keith E. Whittington, Dworkins Originalism: The Role of Intentions in Constitutional
Interpretation, 62 REVIEW OF POLITICS 197, 201 (2000).
77. Lawrence B. Solum, The Unity of Interpretation, 90 BOSTON UNIVERSITY LAW REVIEW 551,
567-77 (2010).
78. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 2, at 82-83, 99.
79. BALKIN, LIVING ORIGINALISM, supra note 7, at 74-81.
80. SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 1, at 47-50.
81. Id. at 184 n.69.
82. Cass R. Sunstein, Second-Order Perfectionism, 75 FORDHAM LAW REVIEW 2867, 2867-70
(2007).

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CHAPTER THREE
Fidelity, Change, and the Good Constitution
The inclusiveness of the new originalismand its concessions regarding construction
and multiple modalities requiring judgments not determined by original public meaningwas
bound to provoke discontent within originalism. This development itself is further evidence of
the Balkanization of originalism. We see vigorous pushback against the new originalism in the
recent book by John McGinnis and Michael Rappaport, Originalism and the Good Constitution.
McGinnis and Rappaport show the exclusive face of originalism. They want no part of the
newness of the new originalism. They reject the interpretation-construction distinction, denying
the need for or the legitimacy of construction, not to mention the multiple modalities. For them,
the original meaning is not so underdeterminative as to require construction. Where the original
meaning seems underdeterminative, they are confident that ordinary lawyers tools for resolving
indeterminacy will be sufficient to yield an answer without requiring construction. 1
Not only do McGinnis and Rappaport condemn all versions of living constitutionalism;
they reject all forms of originalism except their own, original methods originalism: discovering
and applying the original meaning using the original methods that the founders used and
accepted as legitimate. Indeed, they exclude from originalism all of the leading theorists of the
new originalism, Jack Balkin, Lawrence Solum, Randy Barnett, and Keith Whittington. For
them, the only proper approach to interpretation is original methods originalism: thats the only
defensible conception of fidelity. For them, moreover, the exclusive legitimate approach to
change is formal amendment through Article V. 2 I think McGinnis and Rappaport are going to
be lonely in their exclusive world of original methods originalism.
Strikingly, although McGinnis and Rappaport reject the new originalism, they do not

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exactly revert to the old originalism. For one thing, they face up to the need to make normative
arguments to justify originalismthat it fosters a good Constitution 3rather than simply
asserting or assuming (as the old originalists did) that originalism is what interpretation just is.
Strikingly, though, they reject the normative arguments that the new originalists have offered in
support of originalism (discussed in Chapter 2): arguments from the rule of law, popular
sovereignty, and ruliness. For another, they acknowledge that they are making a contingent
argument for originalism that applies to the American constitutional order but may not apply
elsewhere 4again, they are not simply assuming (as the old originalists did) that originalism is
true axiomatically. Finally, more than the old originalists, they attempt to make peace with
precedents that are not consistent with original meaning as they conceive it. 5 In this chapter, in
thinking about fidelity, change, and the good Constitution, I am going to use their book as a foil.
I. THE SUPERMAJORITARIAN CONSTITUTION AS THE GOOD CONSTITUTION
McGinnis and Rappaport argue that supermajoritarian requirements of the American
Constitution (Article Vs requirements of proposal of amendments by two-thirds of both houses
of Congress and ratification by three-fourths of the states) insure that only really good provisions
get adopted. 6 For the sake of argument, let us concede that this is generally true. At the same
time, we must acknowledge that supermajoritarian requirements might lead to some very good
things not getting approved. Everyones favorite example here is the Equal Rights Amendment
(ERA), which would have prohibited denial or abridgement of equality on account of sex. 7 The
ERA was ratified by 35 states, 3 short of the necessary 3/4. Yet, because of the success of the
social movement behind the push for the ERA, and because the Supreme Court adopted
intermediate scrutiny for gender-based classifications, some scholars have argued that we
nonetheless have a de facto ERA. 8

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Aside from amendments concerning very specific topics like term limits for presidents
(the Twenty-Second) and the date of the inauguration of a president (the Twentieth), what wins a
two-thirds vote and three-fourths approval is typically abstract. A consequence is that adopting it
does not resolve future problems of meaning but will require considerable judgment in
interpreting and applying it. Consider, for example, freedom of speech, free exercise of religion,
cruel and unusual punishment, equal protection, and due process. And recall my hypothetical
Twenty-Eighth Amendment concerning a right to autonomy (in Chapter 2).
Moreover, many things that win supermajoritarian approval do so through what John
Rawls called an overlapping consensus and what Cass Sunstein calls incompletely theorized
agreements. 9 That is, people support a given abstract proposition for their own independent yet
overlapping reasons. There is not one authoritative reason or justification. Proponents pull
together shallow rather than deep consensus or agreement. And the agreements are, as Sunstein
puts it, incompletely theorized. There is not one coherent theory or rationale that underlies the
provision. The upshot is that many provisions adopted will be general and will not be
determinate. People will have supported the proposal for different reasons, perhaps in spite of
rather than because of the reasons others offered for it. Or, after the fact, the provision or
framework adopted will have different reasons to support it, whatever the original framers and
ratifiers may have thought were the reasons supporting it. The agreement will be shallow rather
than deepand so, there will not be a deeply, completely, coherently theorized commitment. As
a consequence, interpretation and application will require judgment, even if we aspire to fidelity
to the original meaning of the Constitution.
To recapitulate, many things that win supermajority approvalwhile presumably good
may not be determinately good. Their adoption will not have resolved the differences among

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those who made up the overlapping consensus or who supported the incompletely theorized
agreement. Thus, realizing the good of a provision or amendment will depend upon interpreters
using good judgment in future interpretation of it.
Originalism as applied to such supermajoritarian commitments is not likely to yield
determinate interpretations. But McGinnis and Rappaport remarkably, and inexplicably, argue
that originalism is necessary to preserve the goodness of the supermajoritarian Constitution.10
This is (1) false and in any case (2) a non sequitur. It is false because originalism as applied to
such supermajoritarian commitments is not likely to yield determinate interpretations. It is a non
sequitur because there is nothing about the supermajoritarian process or the supermajoritarian
outcome that requires any particular theory of interpretation, let alone originalismunless, that
is, one is presuming that interpretation just is originalism. All the work remains to be done in
deciding what theory of interpretation to apply and how to justify it. A fortiori there is nothing
about supermajoritarianism that requires McGinnis and Rappaports particular version of
originalism: original methods originalism. Just as there is nothing about supermajoritarianism
that forbids a moral reading. To the contrary, fidelity to a scheme that could win
supermajoritarian support will require a moral reading, not forbid it. We will have to make
normative judgments in interpreting and applying our underdetermined constitutional
commitments.
Despite these criticisms, I agree with McGinnis and Rappaport to a certain extent that the
goodness of the Constitution stems in part from its supermajoritarian features and the obduracy
of Article V to constitutional amendment. But I think it is good for different reasons than they
do. Indeed, for the opposite reasons. In recent years, many have criticized Article V for its
obduracy to constitutional amendment. 11 In support of Article V, I would make two points. 12

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First, I would give two cheers for Article V in a defensive sense, for it has protected the
Constitution and its citizens against the recent rash of amendmentitis (a term that Kathleen
Sullivan has used 13). Numerous illiberal and ill-conceived amendments that would erode basic
liberties or limit important powers have been introduced in Congress in recent years: the Flag
Burning Amendment, the Balanced Budget Amendment, the Parental Rights Amendment, the
Religious Freedom Amendment, the Human Life Amendment, and the Federal Marriage
Amendment, to name a few. Despite the claims of representatives and senators in Congress to
have a mandate from the People, all of the measures that have come up for a vote have failed to
secure the two-thirds vote of both houses required by Article V to propose an amendment for
ratification by the states. Thus, Article Vs requirements have protected the Constitution and its
citizens from such measures.
Second, there is much to be said for Article V in an affirmative sense. As Lawrence Sager
has cogently argued, the obduracy of Article V to ready and easy amendment of the Constitution
has encouraged and fostered broad interpretation of the Constitutions rights-protecting and
power-conferring provisions. 14 It has underscored the character of the Constitution as a charter of
majestic generalities 15abstract principles, general powers, and general frameworks and
structuresas opposed to a code of relatively specific original meanings (as original expected
applications). (Any consensus in support of such majestic generalities or general frameworks is
going to be abstract and indeterminate, and it is not going to resolve our problems for us.) Thus,
Article V has underwritten approaches to constitutional interpretation like those of Dworkins
moral reading, Sagers justice-seeking constitutionalism, and Barbers and my philosophic
approach, not to mention Balkins living originalism and David Strausss common law
constitutional interpretation. 16 That is as it should be. By design, not by accident. And not

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because updating judges have circumvented Article V as the exclusive route for legitimate
constitutional change. Rather, because that is the best way to be faithful to our supermajoritarian,
good Constitution.
Thus, the goodness of the supermajoritarian Constitution is bound up with a moral
reading or philosophic approach, not with originalism in general or original methods originalism
in particular. Original methods originalism would undermine its goodness. In fact, I shall argue
in Chapter 8, even if the framers and ratifiers expected that we would interpret the Constitution
according to originalism of some sort, it is one of the successful failures of the American
Constitution that we have not followed originalism. 17 That is why originalists are second to none
in criticizing our actual constitutional practice for not being originalist. 18
II. ORIGINAL METHODS ORIGINALISM
As stated above, McGinnis and Rappaport argue that, to preserve the goodness of the
supermajoritarian Constitution, we must interpret it according to original methods originalism
(and we must amend it exclusively through Article V). I have two criticisms of original methods
originalism: one emphasizing its peculiarity and another emphasizing its familiarity!
Original methods originalism seems at first glance to be a peculiar constitutional theory
counterpart to the Academy of Ancient Music (England) or Aston Magna (U.S.A.): these are
orchestras committed to performing, for example, Beethoven, using the period instruments that
Beethoven (so they say) intended his symphonies to be performed on. Recall Richard Posners
famous critique, Bork and Beethoven, relating Robert Borks originalism to the authentic
performance movement. 19 That critique applies a fortiori to McGinnis and Rappaports original
methods originalism. I ask, would anyone seriously claim that the only way to realize what is
good in Beethovens sonatas is to use period instruments? Would we take seriously an objection

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to playing Beethoven on a Steinway grand piano rather than an 1827 pianoforte that we found in
Beethovens apartment in Vienna or the like? We would not. We might appreciate the Academy
of Ancient Musicjust as we might appreciate a re-enactment of the Constitutional Convention
of 1787 with people wearing wigs and using quill pens. But we should look upon them as quaint
antiquarians rather than as guardians of the goodness of Beethovens compositionsor of the
Constitution. And it would be implausible to claim that anyone who did not use period
instruments was subverting the goodness of Beethovens compositions. We should view original
methods originalism in the same light.
Now, just what are the original methods to which McGinnis and Rappaports original
methods originalism would limit us? Heres the part about familiarity. I had expected McGinnis
and Rappaport to give a thorough account of the methods or modalities or sources of
interpretation extant in 1787 (at the founding) and 1868 (at Reconstruction) and so on. I had
expected some powerful demonstrations that many of the modalities that we use todayin
particular, those championed by the pragmatists, living constitutionalists, and moral readers
had no counterparts in 1787 and 1868 and so on. Or indeed that they were specifically forbidden
at those times. Or maybe even that there were original methods with which we are not familiar
and which we now have to revive on pain of being charged with illegitimately updating the
Constitution! Instead, we get little more than a couple of quotations from Blackstone and Story
about the importance of text and intent in constitutional interpretation, plus assurances that, if
there were ambiguity or vagueness in a constitutional commitment, interpretive rules extant at
the time would resolve them. Beyond that, McGinnis and Rappaport make dogmatic assertions
that there was no such thing in 1787 or 1868 as judicial updating or living constitutionalism or
dynamic interpretation. 20 This core chapter is the thinnest, weakest, and most conclusory of their

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book. I shall limit my remarks to three criticisms.
One, McGinnis and Rappaport give us no reason to believe that all of the familiar
modalities of interpretation that we use today were not used at the time of the founding or
Reconstruction. Take, for example, Philip Bobbitts well-known typology of six modalities of
constitutional interpretation: text, history, structure, prudence (including consequences),
precedent, and ethos (or spirit). 21 It is important to note that Bobbitts own illustrations of each
of these modalities date from early in our history. He is not saying we have added new
modalities to the original modalities as we have gone along. More generally, proponents of each
of these modalities claims to find them in operation from the beginning of our constitutional
system and throughout its history. McGinnis and Rappaport do not make a convincing case that
any, much less most, of these modalities were not among the original methods of constitutional
interpretation. Nor that the approaches of living constitutionalism and a moral reading were not
extant at the time of the founding.
Two, McGinnis and Rappaports purported examples of canonical original methods
originalism do not support their arguments. For example, Blackstones and Storys accounts of
text and intent as sources of meaning 22 are so generic that I cannot imagine that anyone would
reject them. They hardly stand for what I have called contemporary originalism as an ism.
They instead represent traditional recourse to text and intent in constitutional interpretation (as a
generic consideration of text and intent as available sources of constitutional meaning). They do
not cut ice in differentiating McGinnis and Rappaports method of originalism from, say,
Balkins living originalism or Dworkins moral reading.
Three, I would argue that the original methods of 1787 and for that matter 1868 did not
include originalism as we know it today. To explain, I shall recall the distinction I drew in

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Chapter 1: (1) originalism as an ism versus (2) generic consideration of original meaning as one
among several available approaches in interpreting the Constitution. The latter existed in 1787.
And in 1868. The former originated in 1971, with the publication of Borks Neutral Principles
and Some First Amendment Problems. 23 Indeed, Steven Calabresi has called Bork the father of
originalism. 24 Before Richard Nixons and Robert Borks criticisms of the Warren Court and
the early Burger Court, originalism as an ism, as we know it today, did not exist. You dont have
to take my word for it. In addition to Calabresi, just read the work of the systematic theorists of
originalism like Keith Whittington and Lawrence Solum. They date old originalism in this way:
as a negative, reactive attitude to the Warren Court that began in the 1970s and was developed in
earnest in the 1980s. 25 The new originalism dates from 1999 (Barnett) or 2002 (Whittington). 26
The most implausible claim that McGinnis and Rappaport make is that original meaning
or original intent is determinate enough to resolve our problems today or, where it is not, original
interpretive rules will eliminate any ambiguity, vagueness, or indeterminacy. 27 They say very
little about what these interpretive rules are or about how they will work in resolving
ambiguities, vagueness, and disagreement. Our most fundamental disagreements in any case do
not typically involve ambiguities and vagueness as they conceive them; instead, our deepest
disagreements are about competing understandings of interpretive concepts, as Dworkin puts it. 28
For example, is the Equal Protection Clause best understood as embodying an anti-caste
principle or a principle of racial neutrality (or color-blind Constitution)? McGinnis and
Rappaport do not provide any interpretive rules that will enable us to decide which of the
competing understandings of these concepts is the best interpretation. The moral of the story is
that original methods concerning the interpretation of text and intent, supplemented by original
interpretive rules, are not going to provide determinacy in interpreting abstract constitutional

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commitments. We will need to make moral, philosophic, and jurisprudential judgments in
deciding whichamong competing available interpretationsis the best interpretation of the
Constitution.
III. FIDELITY AS REDEMPTION VERSUS JUDICIAL UPDATING:
THE CASE OF EQUAL PROTECTION FOR GAYS AND LESBIANS
McGinnis and Rappaport have coarsened the debate in constitutional interpretation by
reducing it to a clash between fidelity to the Constitution through original methods originalism
and judicial updating of the Constitution. Those who engage in construction or moral readings
are said to bypass Article V amendment through judicial updating. 29 With all due respect, the
style of justification of the moral reading is one of fidelity to the Constitution in redeeming its
promises, rather than a rhetoric of judicial updating of the Constitution to keep it in tune with the
times. I shall analyze briefly the case of gay and lesbian rights, in particular, the concern for
securing the status of gays and lesbians as equal citizens as manifested in Romer, Lawrence, and
Windsor. My point will be that the idea of updating does not capture what is going on, whereas
the idea of fidelity to the Constitution in redeeming its promises or making it the best it can be
does. 30
On the McGinnis-Rappaport view, the original meaning of the Equal Protection Clause in
1868 did not include a commitment to securing the status of gays and lesbians as equal
citizens. 31 Nor did it in 1986, when Bowers was decided, holding that the Due Process Clause
did not protect a right of privacy or intimate association for gays and lesbians. Nor in 1996, the
year Romer was decided, holding that the Equal Protection Clause did protect gays and lesbians
against legislation reflecting animus against, and a bare...desire to harm [them as] a politically
unpopular group. Nor in 2003, the year of Lawrence, which overruled Bowers and held that the

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Due Process Clause did protect a right of autonomy or intimate association for gays and lesbians.
Nor for that matter in 2013, when Windsor was decided, holding that the federal Defense of
Marriage Actwhich defined marriage for purposes of federal law as the union of one man and
one womanreflected animus against, and a bare...desire to harm [gays and lesbians as] a
politically unpopular group, as well as classifications that demean on the basis of sexual
orientation, in violation of Equal Protection. 32 And so, on their view, the argument for
interpreting the Constitution to secure the status of equal citizenship for gays and lesbians is
necessarily an argument for judicial updating of the Constitution to keep up with current ideas of
equality. And illegitimate updating at that. (This is also how Justice Scalia views these matters,
as indicated in his dissents in Romer, Lawrence, and Windsor. 33)
As McGinnis and Rappaport see it, after Bowers, if you wanted to secure the status of
equal citizenship for gays and lesbians through constitutional law, the only constitutionally
appropriate route would be to work for an Equal Rights Amendment protecting gays and lesbians
against discrimination. To press for equality for gays and lesbians, as a matter of constitutional
interpretation and construction, without formally amending the Constitution, would be to seek
judicial updating of the Constitution, which is illegitimate.
Moral readers see the matter rather differently. On their view, the Equal Protection
Clause embodies an abstract commitment to securing the status of equal citizenship for allon
our best understanding of what doing so entails. 34 Perhaps in 1868, our best understanding would
have been that it principally protected the newly freed slaves (or persons of African descent more
generally). Perhaps we would not have seen any analogies between the second-class citizenship
of the newly freed slaves and, for example, that of women (much less that of gays and lesbians).
But over time, we came to appreciate those analogies, partly through the suffrage movement

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culminating in the ratification of the Nineteenth Amendment, partly through the changing roles
and place of women in the world, and even partly through the failed campaign to ratify the Equal
Rights Amendment. Through such developments, we came to see, for example, in Frontiero
(plurality opinion) and Craig (majority opinion), that certain longstanding history and tradition
relegated women to second-class citizenship and thus denied them equal protection. 35 We came
to a better understanding of our commitment to equal protection as condemning second-class
citizenship not only for newly freed slaves and African Americans generally but also for women.
The same holds for the rights of gays and lesbians. In 1986, when Bowers was decided,
the Supreme Court did not see that longstanding history and tradition denied gays and lesbians
the status of equal citizenship. 36 From Bowers through Romer and beyond to Lawrence and
Windsor, the Court came to see that gays and lesbians were being relegated to second-class
citizenshipon our best understanding of what equal protection and due process requires. As
Justice Kennedy put it in Romer: One century ago, the first Justice Harlan admonished this
Court that the Constitution neither knows nor tolerates classes among citizens (quoting from
dissent in Plessy v. Ferguson (1896)). Kennedy added that Colorado, by prohibiting protection of
gays and lesbians from discrimination, had deem[ed] a class of persons a stranger to its laws in
violation of the Equal Protection Clause. 37 As Justice Kennedy observed in Lawrence:
Had those who drew and ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment known the components of liberty in its
manifold possibilities, they might have been more specific. They did not presume
to have this insight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact serve only
to oppress. As the Constitution endures, persons in every generation can invoke

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its principles in their own search for greater freedom. 38
In other words, persons in every generation can seek to redeem the Constitutions promise of
liberty.
Now, does the fact that we did not go through the formal supermajoritarian procedures of
Article V for amending the Constitution to protect gays and lesbians cheapen that evolution in
our understanding of the constitutional commitment to securing equal protection and the status of
equal citizenship for all? Or imply that those insights and hard-fought victories for gays and
lesbians, after centuries of second-class citizenship, were illegitimate? Should gays and lesbians
have proceeded differently in bringing people to understand that longstanding laws were
relegating them to second-class citizenship? Should Romer, Lawrence, and Windsor be
disparaged as illegitimate judicial updating and the much-maligned Bowers be celebrated for
upholding the legitimate Constitution (as Scalia has argued 39)? In sum, is there something wrong
with how we came to realize the promise or the implications of our commitments?
Hardly. These formulations simply do not capture what is going on here. Instead, through
interpretation grounded in analogies and understandings rooted in our constitutional practice, we
are redeeming the promise of equal protection and liberty for gays and lesbians. We are realizing
the best understanding of our constitutional commitments to securing the status of equal
citizenship for all. This is a moral readings rhetoric of fidelity as redemption of the promise of
the abstract commitment to securing the status of equal citizenship for all (In Chapter 6, I
interpret Balkin, with his idea of fidelity as redemption of the promises of the Constitution, as a
moral reader.) It is not a rhetoric of judicial updating (or even of living constitutionalism).
IV. ORIGINALISM: FAILED PROMISE OR FALSE PROMISE?
One tack in criticizing originalism is exemplified in Frank Crosss recent book, The

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Failed Promise of Originalism. 40 Cross begins by granting the supposed appeal or promise of
originalism. But he proceeds to show that originalism does not deliver on that appeal or promise.
Thats what he means by the failed promise of originalism. Along similar lines is John Hart
Elys famous critique of originalism (or clause-bound interpretivism). He begins by granting
the allure of interpretivism. But then he shows that it is impossible, for it dispositively fails
on its own terms: for the Constitution itself, for example, in the Ninth Amendment, tells us not to
be an interpretivist. 41
My tack is different: instead of demonstrating the failed promise of originalism, I show
the false promise of originalism. I deny the appeal or promise of originalism unless we cast
originalism so abstractly that it is the functional equivalent of the moral reading or philosophic
approach (as with Balkins living originalism). Why do I deny the appeal or promise of
originalism? Here I shall reiterate the three arguments I made in Chapter 1 and add a fourth.
First, originalism, old and new, is at bottom authoritarian, an insult to the founders for their
arrogance and an insult to us for our subservience. Second, originalism, old and new, makes a
virtue of claiming to exile moral and political theory from the province of constitutional
interpretation. Yet interpreting our Constitution with fidelity requires judgments of moral and
political theory about how its abstract principles, frameworks, and structures are best understood.
Third, originalism, old and new, misconceives fidelity in constitutional interpretation: we should
conceive fidelity as honoring our aspirational principles rather than as following our historical
practices and concrete original understandings or meanings, which surely have failed to realize
our aspirations. Ironically, in the name of interpretive fidelity, originalists would enshrine an
imperfect constitution that does not deserve our fidelity. Finally, I reject the irresponsibility of
originalism: originalists fail to take responsibility for the decisions we have to make in

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interpreting the Constitution; instead, they say, We didnt do it, the framers and ratifiers did it!
The commitment to fidelity is a commitment to honor our aspirations and framework for
constitutional self-government: to build them out with integrity and responsibilitynot to evade
responsibility by claiming that we are just following the commands of the founding fathers and
that they have already made our decisions for us. The former view also reflects an understanding
of the Constitution itself as a framework for furthering the good things proclaimed in the
Preambleand an understanding that being faithful to the Constitution by honoring its
aspirations will entail change as we confront new problems in new circumstances. We confront
such problems with an attitude of integrity and responsibility, not an attitude of following
commands that have already made our decisions for us. And not with an attitude of updating in
the forward-looking, anti-fidelity sense of hackneyed versions of living constitutionalism. I do
not call that updating the Constitution. I call it being faithful to the Constitution by redeeming its
promises, thereby interpreting it so as to make it the best it can be. In that sense, fidelity entails
change.
I shall argue that Dworkins 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 Balkins) 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 embodied in
the Constitution 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 selfgovernment with coherence, integrity, and responsibility, rather than in the name of updating a
living constitution. It also aims for something better than preventing rot, as Scalia famously

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put it. 42
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, how to interpret
the Constitution so as to make it the best it can be.
V. A FRESH START CONCERNING FIDELITY
It is time for a fresh start in thinking about fidelity and change in constitutional
interpretation. Conventional formulations of the clash between originalism and living
constitutionalism have enabled the originalists to claim a monopoly on concern for fidelity and
enabled originalists to disparage living constitutionalists as attempting to change or update
the Constitution rather than be faithful to it. 43 Living constitutionalists, both wittingly and
unwittingly, have willingly gone along with this rhetoric and its implications. 44 Moral readers
like Dworkin have rejected these formulations, but this has not been sufficiently appreciated.
We should begin at the beginning, by recalling (as observed in Chapter 1) that the
aspiration to fidelity raises two fundamental questions: Fidelity to what? and What is fidelity?
Lets begin with the question, Fidelity to what?45 My answer is fidelity to our abstract
constitutional aspirations, including ends, principles, and basic liberties, together with our
general constitutional framework of structures and powers. Fidelity to our aspirations does not
entail obligation to follow the past in the sense of concrete original meanings. That would
enshrine an imperfect Constitution that falls short of our aspirations and does not deserve our

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fidelity.
Next, lets consider the other question, What is fidelity? It is not fealty, or subservience. It
is not following the authority of the past in the manner of an authoritarian originalism.
Furthermore, it is not obligation to the concrete past, whether original meaning or precedents.
Rather, fidelity is honoring our aspirations and pursuing our commitments by furthering our best
understandings of them. The concrete original meaning and precedents are evidence of goodfaith efforts to pursue those aspirations, but they are not the aspirations themselves. They have
no doubt fallen short of our aspirations. If following those sources from the past dishonors our
aspirations and undermines our commitments, we have good reasons to reject them in order to
pursue our aspirations and commitments.
Moreoverto return to the question, Fidelity to what?we should aspire to fidelity to
our scheme as an ongoing frame of government pursuing the ends of the Preamble, not as a set of
concrete original meanings or a string of precedents. Again, I do not say that we have an
obligation to follow the concrete past, though I do say that we aspire to fidelity to the
Constitution. How can we aspire to fidelity while rejecting obligation to the concrete past?
If we conceive the Constitution as a frame of government, to be lived under and worked
out over time, we can approach it with an attitude of fidelity but without an obligation of
obedience to concrete expected applications or precedents. Fidelity on this understanding entails
a commitment to making the frame of government work, to learning from experience, and to
interpreting the Constitution so as to further its ends and realize its aspirations.
Fidelity? Yes. Commitment? Yes. Obligation or obedience in an authoritarian sense to
original expected applications or precedents? No. Fidelity is not obedience to decisions already
made for us in the past by people who are long dead and who were ignorant of the challenges

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and problems of our age. Fidelity, rather, is an attitude of commitment to making the scheme
work, to building it out over time to better realize its ends and our aspirations or to make the
Constitution the best it can be. 46
Let me encapsulate the contrast between two radically different attitudes toward fidelity
and change. On the authoritarian originalist view, fidelity in constitutional interpretation requires
preventing change by preserving relatively concrete original meanings and longstanding
historical practices. On the aspirational moral reading view, fidelity requires criticizing
longstanding historical practices and pursuing change in order to realize the Constitutions
aspirational, transformative principles and purposes.
For example, as illustrated in Chapter 2, for moral readers such as Justice Brennan,
Justice Ginsburg, or Justice Stevens, the point of adopting and amending the Constitution is not
to embody longstanding historical practices, but to transform them in pursuit of our
constitutional aspirations to normative principles like equality and liberty. Brennan wrote,
Interpretation must account for the transformative purpose of the text. Our Constitution was not
intended to preserve a preexisting society but to make a new one, to put in place new principles
that the prior political community had not sufficiently recognized. He continued, Thus, for
example, when we interpret the Civil War amendments...we must remember that those who put
them in place had no desire to enshrine the status quo. Their goal was to make over their
world. 47 That is Brennans conception of the abstract, aspirational original public meaning of
the Civil War Amendments, including the Fourteenth Amendment.
For Brennan, Ginsburg, and Stevens, the Fourteenth Amendment commits us to equal
protection on our best understanding, not equality as it was reflected in the common law and
statute books in 1868, with all manner of racist, sexist, and heterosexist expectations and

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presuppositions. 48 It also commits us to liberty on our best understanding, not liberty as it was
manifested in the common law and statute books as of 1868. 49 As they see it, originalists seeking
to enforce Scalia-like conceptions of original public meaning eviscerate the Fourteenth
Amendments transformative purposes. Such originalists subvert the aspiration to fidelity to our
commitments.
In sum, fidelity entails change:
!

If fidelity is commitment to honoring abstract aspirational commitments, not to following

concrete original expectations of how those commitments should be applied.

If fidelity is commitment to living under our constitutional framework as an experiment

in constitutional self-government as opposed to an authoritarian command that we must
follow.

If fidelity is building out our framework with coherence, integrity, and responsibility
versus following original expected applications and longstanding historical practices.

If fidelity is redemption of the Constitutions promises, not adherence to its concrete

original meanings and longstanding historical practices.
VI. A MORAL READING IS SUPERIOR TO LIVING CONSTITUTIONALISM
In thinking about fidelity and change in constitutional interpretation, many have put

originalism on the side of fidelity and living constitutionalism on the side of change. Indeed, the
rhetoric of originalism is that of fidelity and the rhetoric of living constitutionalism is that of
change. But I want to make clear that I am not advocating living constitutionalism or judicial
updating of the Constitution as an alternative to originalism. Some readers may think that
Dworkins and my approaches are versions of living constitutionalism, but they are importantly
different from it.

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In Chapters 2 and 6, I suggest that the prospects for reconciliation between Solums and
Balkins new originalisms and moral readings are greater than those between new originalisms
and living constitutionalism. The basic reason is that the new originalists and moral readers share
a commitment to constitutional fidelity: to interpretation and construction that best fits and
justifies the Constitution. Living constitutionalists characteristically are more pragmatic,
instrumentalist, and forward-looking in their approaches to the Constitution and, as such, tend to
be anti-fidelity. Though, truth be told, most living constitutionalists who supposedly think this
way are fabrications created in the minds of originalists like Chief Justice Rehnquist (see his
The Notion of a Living Constitution) and Justice Scalia (see his discussion of the Living
Constitution in his A Matter of Interpretation). 50
Dworkin made such arguments long ago in Taking Rights Seriously, 51 but they have been
neglected. I shall briefly recall them here (Barber and I fully elaborate such arguments in our
book, Constitutional Interpretation: The Basic Questions. 52) Dworkin argued that the
Constitution embodies concepts rather than the founders specific conceptions of those
concepts. 53 As he subsequently put it, the Constitution embodies interpretive concepts. 54 He
argued that fidelity in constitutional interpretation requires elaborating those conceptsrather
than enforcing the founders specific conceptions of themin quest of our best understanding of
those concepts.
Dworkin contended that arguments for living constitutionalism were vulnerable:
Those who ignore the distinction between concepts and conceptions...are forced
to argue in a vulnerable way. They say that ideas of cruelty change over time, and
that the Court must be free to reject out-of-date conceptions; this suggests that the
Court must change what the Constitution enacted. But in fact the Court can

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enforce what the Constitution says only by making up its own mind about what is
cruel.... If those who enacted the broad clauses had meant to lay down particular
conceptions, they would have found the sort of language conventionally used to
do this, that is, they would have offered particular theories of the concepts in
question. 55
Indeed, many liberal living constitutionalists have argued in the vulnerable way sketched by
Dworkin, leaving them open to the charge that they do not care about fidelity to the Constitution
but instead want to change or update it.
Liberal constitutional theorists need a rhetoric of fidelity and redemption, as Dworkin and
Balkin well know and have powerfully demonstrated. To be sure, liberal living constitutionalism
is on firmer ground now than it was when Dworkin wrote. In particular, Strauss has given it its
most persuasive formulation to date, framing it as a common law constitutional interpretation
rather than simply a forward-looking program for changing or updating the Constitution. Strauss
convincingly shows the extent to which (1) common law constitutional interpretation rather than
originalism has been our practice; (2) common law constitutional interpretation provides better
constraints upon judicial decision making than does originalism; and (3) common law
constitutional interpretation rather than the formal procedures of Article V has been our
procedure for change. 56 He gives living constitutionalism a grounding, rigor, and structure that it
previously lacked.
Yet, I shall argue in Chapter 5, Strausss common law constitutional interpretation would
be more compelling if it were interpreted or reconstructed as a moral reading. For common law
constitutional interpretation is not just a matter of making forward-looking, unbounded
judgments of fairness and good policy. I shall suggest that there are affinities between the

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aspiration of common law constitutional interpretation to work[s] itself pure and the aspiration
of moral readings, in Dworkins famous formulation, to interpret the Constitution so as to make
it the best it can be. 57 We should interpret the Constitution so as to redeem its promises: through
working them out with coherence, integrity, and responsibility, rather than engaging in antifidelity living constitutionalist talk about updating the Constitution.
VII. WHY ORIGINALISM IN THE U.S.A. BUT NOT ELSEWHERE?
Finally, I shall ponder the reasons for the grip of originalism in our constitutional culture
as contrasted with its rejection elsewhere. Some originaliststo recall our discussion of the
originalist premise in Chapter 1assert or assume that originalism is what interpretation just is,
as a matter of fact. 58 Others assert or assume that originalism is what interpretation should be, as
a normative matter. 59 Both are evidently universalist assertions or assumptions about
interpretation, not contingent claims about American constitutional interpretation and practice. I
am not a comparative constitutional law scholar, but I wrote my Ph.D. dissertation at Princeton
University under Walter Murphy, the greatest political science comparative constitutional law
scholar of his generation. The first thing I learned about comparative constitutional law from
Murphy was that originalism is peculiar to the U.S.A. And that it is rejected elsewhere. 60 Indeed,
among many if not most domestic constitutional theorists and comparativists, this seems to be
the conventional wisdom. 61
If true, this conventional wisdom (1) refutes the matter of fact claim and (2) casts doubts
upon the normative claim. First, it is not the fact of the matter that interpretation just is
originalism. Two, although it could be the case that American originalists are right,
normativelyand everyone else in the world is wrongit is more likely that there are
contingent reasons for originalisms normative appeal (at least to some) in the U.S.A. As

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mentioned above, McGinnis and Rappaport concede that their arguments for originalism and the
good Constitution in the U.S.A. are contingent, not universal. Viewing the normative arguments
as contingent, we should ask, what accounts for the appeal of originalism in the U.S.A. but not
elsewhere?
I acknowledge that, in recent years, some comparativists have questioned this
conventional wisdom. They have suggested that originalism is not so peculiarly American after
all. 62 But we need to bear in mind the distinction I drew in Chapter 1 and reiterated in this
chapter: (1) Original meaning in a generic sense as one source among several available sources
versus (2) originalism as an ism, as a claim that original meaning conceived at a very specific
level of abstraction is the only legitimate source of constitutional meaning. The comparativists
who find originalism here, there, and everywhere most likely are finding original meaning in a
generic sense as one source among several. 63 I doubt that they are finding what I call originalism
as an ism outside the U.S.A. No doubt resort to original meaning in a generic sense is used
elsewhere. For example, Australian comparative scholar Jeffrey Goldsworthy says that we find
moderate originalism (roughly, what I am calling generic consideration of original meaning)
elsewhere, but not extreme originalism (roughly, what I am calling originalism as an ism as
found in the U.S.A.). 64
And so, we should ask what accounts for the appeal of originalism as an ism here in the
U.S.A. but not elsewhere. I should say, the appeal of originalism as an ism here in the U.S.A.
since the 1970s and 1980s. I shall mention several reasons commonly given, without conceding
that they actually are good reasons for practicing originalism as an ism in the U.S.A. In fact, I
believe the claims that our constitutional culture and practice is originalist are greatly
exaggerated. Indeed, if our constitutional culture and practice is so originalist, then why is it that

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originalists are so critical of our constitutional culture and practice for not being originalist?
Moreover, I believe that the reasons commonly given for the grip of originalism in our
constitutional culture are better understood as reasons for the grip of the aspiration to fidelity
explaining recourse to first principles and the aspiration to fidelity to those first principlesnot
the grip of originalism as such. And I 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.
Furthermore, I argue that it is moral readings that are actually doing the work in invoking
conceptions of those first principles and elaborating them. Ironically, the arguments said to
explain the appeal of originalism in the U.S.A. work better as arguments explaining the need for
a moral reading here.
First reason: In the U.S.A., we had a revolution followed by a constitutional founding
based on reflection and choice, as The Federalist No. 1 put it. 65 These experiences, the
argument goes, have fostered a constitutional culture where people, instead of accepting matters
as settled, always feel free to recur to first principles in criticizing existing arrangements. Indeed,
originalism is characteristically a radical invocation of first principles from which we are said to
have fallen away. These first principles are invoked to justify overthrowing erroneous precedents
and throwing out longstanding practices. 66 Ironically, originalism may be most appealing where
people are deeply critical of current practices and want radical change that ostensibly returns to
their conceptions of first principles. Indeed, we will see this borne out in the additional reasons
for the appeal of originalism in the U.S.A.
Second reason: The conservative counter-revolutionary reaction against the Warren

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Court revolution (and the early Burger Courts decision in Roe v. Wade 67). As suggested above
in Chapter 1 and reiterated in this chapter, before Richard Nixon and Robert Bork launched their
attacks on the Warren Court and the early Burger Court, originalism as we now know it (as an
ism) did not exist. What I said about the first reason applies as well to the second: The appeal of
originalism consists in its promise of radical change and ostensible return to originalists
conceptions of first principles. What drives these moves to originalism clearly are conservative
moral readings of the Constitution.
Third reason (related to the second): The conservative counter-revolutionary reaction
against the modern regulatory state (emboldened by the Reagan revolution). 68 Especially since
the administration of Ronald Reagan, conservatives and libertarians have called for restoring
the lost constitution or the Constitution in exile. 69 They argue that progressive and liberal
living constitutionalists have rewritten the Constitution.70 In doing so, they have destroyed the
goodness of the original founding principles, believed (fervently) to be conservative and
libertarian. Thus, the abandonment of founding principles has enabled the rise of the modern
regulatory and welfare state. If only we could restore the original, lost Constitutionthrough
originalism. But what fuels this counter-revolutionary fervor, again, are conservative moral
readings: conservative conceptions of liberty against government that they believe put the
founding in its best light, not a concern for fidelity to concrete original meanings for its own
sake.
Fourth reason: The poverty of constitutional theory (both in originalism and its
alternatives). Originalists commonly charge that you cant beat somebody with nobody, or say
that it takes a theory to beat a theory. 71 The presuppositions are that originalism is the
traditional, familiar view and that it is a cogent theory. Originalism itself, truth be told, was not

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much of a theory. It passed, so originalists say, for the common sense of the matter. 72 But, if so,
originalism passed for common sense in a generic sense rather than in the specific sense of
originalism as an ism. The further presupposition is that there really is no alternative cogent
theory. This view, I believe, was reinforced by the poverty of the rhetoric of the living
constitution (at least prior to the publication of Strausss The Living Constitution in 2010) and
the poverty of constitutional theory generally (at least prior to the publication of Dworkins
Taking Rights Seriously in 1977 and John Hart Elys Democracy and Distrust in 1980). But
constitutional theory is richer today, and there are cogent alternatives to originalism, including
Strausss common law constitutional interpretation and Dworkins moral reading. Meanwhile,
originalism itself has split into warring camps. Indeed, in my account of the Balkanization of
originalism, in Chapter 1, I have argued that the only thing originalists agree upon is their
rejection of living constitutionalism (and moral readings).
Fifth reason: Written constitution coupled with the constitutional protestantism of our
constitutional culture (by protestantism I mean the view that not only courts but also other
institutions and ultimately every citizen may share in the responsibility of interpreting the
Constitution73). Relatedly, written constitution as the font of our civil religion. 74 These ideas are
said to explain why Americans are originalist. 75 Yet, ironically, originalism tends to promote the
juridic lawyers constitution, conceiving it as terms of art to be understood only through
specialized legal knowledge of original meanings. 76 (Not at all a constitutional protestantism
after all.) Constitutional protestantism actually typically expresses itself in the form of moral
readings rather than lawyerly readings. For the lawyerhood of all citizens celebrated by
constitutional protestantism actually is more likely to generate readings of the Constitution as
embodying moral principles than as enacting lawyerly terms of art. 77

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Sixth reason: Written constitution coupled with the promise of redemption and the belief
that the American Constitution is a shining city on a hill. 78 The founding is glorified as
embodying great wisdom, leading to worship of the founders. 79 If so, the argument or
presupposition seems to be, we have to be originalists to determine what is so good about the
Constitution and to preserve what is good about it. We see a contemporary version of this
argument in McGinnis and Rappaports Originalism and the Good Constitution. 80 But, I have
argued, to be faithful, to redeem the promises of the shining city on a hill, we must forsake
originalism for a moral reading or philosophic approach. 81 And so, this supposed argument for
originalism in the U.S.A. works better as an argument for a moral reading.
VIII. FIDELITY WITHOUT ORIGINALISM AND CHANGE WITHOUT LIVING CONSTITUTIONALISM
In conclusion, we need a theory of fidelity without originalism and change without living
constitutionalism. In Chapters 4 and 5, I shall develop such a theory in the form of a moral
reading or philosophic approach to constitutional interpretation. Such a theory would better
promote the good Constitution than would any form of originalism, including McGinnis and
Rappaports original methods originalism.

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NOTES TO CHAPTER THREE
1. JOHN O. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION
15, 118-21, 141-44, 139-53 (2013).
2. Id. at 14-15, 81-99, 116-38, 139-40, 254 n.1, 255 n.6.
3. Id. at 2.
4. McGinnis explicitly acknowledged that he was making a contingent argument at the Harvard
Law School Federalist Society event on the book. This acknowledgment seems implicit in the
book. Id. at 12-13.
5. Id. at 154-96.
6. Id. at 33-61.
7. See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE
CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 165 (2006).
8. Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change:
The Case of the De Facto ERA, 94 CALIFORNIA LAW REVIEW 1323 (2006).
9. JOHN RAWLS, POLITICAL LIBERALISM 133-72 (1993); Cass R. Sunstein, Commentary:
Incompletely Theorized Agreements, 108 HARVARD LAW REVIEW 1733 (1995).
10. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 1215.
11. See, e.g., LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 7, at 155-66.
12. In this paragraph and the next, I draw upon James E. Fleming, We the Unconventional
American People, 65 UNIVERSITY OF CHICAGO LAW REVIEW 1513, 1533-34 (1998).
13. Kathleen M. Sullivan, Constitutional Amendmentitis, AM. PROSPECT 20 (Fall 1995)
(criticizing a rash of proposals to amend the Constitution).

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14. LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL

PRACTICE 164, 183-87, 213-19 (2004).
15. I allude to Justice Jacksons famous formulation in West Virginia v. Barnette, 319 U.S. 624,
639 (1943).
16. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION (1996); SAGER, JUSTICE IN PLAINCLOTHES, supra note 14; SOTIRIOS A. BARBER &
JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE BASIC QUESTIONS (2007); JACK M.
BALKIN, LIVING ORIGINALISM (2011); DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
17. James E. Fleming, Successful Failures of the American Constitution, in THE LIMITS OF
CONSTITUTIONAL DEMOCRACY 29, 44-45 (Jeffrey K. Tulis & Stephen Macedo eds., 2010).
18. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE
LAW (1990); MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note
1; RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION (2004).
19. Richard A. Posner, Bork and Beethoven, 42 STANFORD LAW REVIEW 1365 (1990) (reviewing
BORK, TEMPTING OF AMERICA, supra note 18).
20. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 11821, 135-36, 141-48, 153.
21. PHILIP C. BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 7-8 (1982). See
also Richard Fallons article distinguishing five forms of argument in constitutional
interpretation. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional
Interpretation, 100 HARVARD LAW REVIEW 1189 (1987).
22. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 144-

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45.
23. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 INDIANA LAW
JOURNAL 1 (1971).
24. Steven G. Calabresi and Lauren Pope, Judge Robert H. Bork and Constitutional Change: An
Essay on Ollman v. Evans, 80 UNIVERSITY OF CHICAGO LAW REVIEW DIALOGUE 155, 155
(2013).
25. Keith E. Whittington, Originalism: A Critical Introduction, 82 FORDHAM LAW REVIEW 375,
375-77 (2013); Keith E. Whittington, The New Originalism, 2 GEORGETOWN JOURNAL OF LAW &
PUBLIC POLICY 599, 599-602 (2004); ROBERT W. BENNETT AND LAWRENCE B. SOLUM,
CONSTITUTIONAL ORIGINALISM: A DEBATE viii, 7-8 (2011) [hereinafter SOLUM].
26. Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOYOLA LAW REVIEW 611 (1999);
Whittington, The New Originalism, supra note 25. Whittington presented drafts of this paper as
early as 2002.
27. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 14144.
28. RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 158-70 (2011).
29. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 8182, 100-01.
30. BALKIN, LIVING ORIGINALISM, supra note 16, at 73-99; RONALD DWORKIN, LAWS EMPIRE
255 (1986).
31. See MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at
100-15 (analyzing the exclusion of African Americans and women as supermajoritarian

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failures).
32. Bowers v. Hardwick, 478 U.S. 186, 191 (1986); Romer v. Evans, 517 U.S. 620, 634 (1996);
Lawrence v. Texas, 539 U.S. 558, 562, 574 (2003); United States v. Windsor, 133 S.Ct. 2675,
2693, 2694, 2695 (2013).
33. Romer, 517 U.S. at 640-41 (Scalia, J., dissenting); Lawrence, 539 U.S. at 594-98 (Scalia, J.,
dissenting); Windsor, 133 S.Ct. at 2710-11 (Scalia, J., dissenting).
34. DWORKIN, FREEDOMS LAW, supra note 16, at 72-74; BARBER & FLEMING, CONSTITUTIONAL
INTERPRETATION, supra note 16, at 82-84; JAMES E. FLEMING, SECURING CONSTITUTIONAL
DEMOCRACY: THE CASE OF AUTONOMY 5, 69, 70, 96, 118 (2006).
35. Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion); Craig v. Boren, 429 U.S.
190 (1976) (majority opinion).
36. Bowers, 478 U.S. at 190-91 (asserting that none of the precedents protecting a right of
privacy bears any resemblance to the case here).
37. Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (Harlan, J.,
dissenting)), 635.
38. Lawrence, 539 U.S. at 578-79.
39. Romer, 517 U.S. at 640-41 (Scalia, J., dissenting) (arguing that Bowers is unassailable for
those who believe in following the Constitution instead of making up a living constitution).
40. FRANK CROSS, THE FAILED PROMISE OF ORIGINALISM (2013).
41. JOHN HART ELY, DEMOCRACY AND DISTRUST 1-9, 13 (1980).
42. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 40-41
(Amy Gutmann ed., 1997).

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43. See, e.g., MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note
1, at 81-82, 100-01;SCALIA, A MATTER OF INTERPRETATION, supra note 42, at 37-48; Antonin
Scalia, Originalism: The Lesser Evil, 57 UNIVERSITY OF CINCINNATI LAW REVIEW 849, 852
(1989).
44. For example, I fear that David Strausss arguments in support of living constitutionalism as
common law constitutional interpretation are more anti-fidelity than is necessary and than is
good for him. See STRAUSS, LIVING CONSTITUTION, supra note 16, at 24. The same may be true
of Erwin Chemerinskys arguments for living constitutionalism as an open-ended modernism.
ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION 129, 133 (1987). By contrast, Liu,
Karlan, and Schroeders recent defense of a living constitutionalism is cast in terms of fidelity
and keeping faith with the Constitution. GOODWIN LIU, PAMELA S. KARLAN, & CHRISTOPHER
H. SCHROEDER, KEEPING FAITH WITH THE CONSTITUTION (2009).
45. In this section, I draw from James E. Fleming, Fit, Justification, and Fidelity in
Constitutional Interpretation, 93 BOSTON UNIVERSITY LAW REVIEW 1283, 1291-92 (2013).
46. BALKIN, LIVING ORIGINALISM, supra note 16, at 3; DWORKIN, LAWS EMPIRE, supra note 30,
at 255; FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 34, at 16, 210-11.
47. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27
SOUTH TEXAS LAW REVIEW 433, 438 (1986).
48. See, e.g., Shelby County v. Holder, 133 S. Ct. 2612, 2637 (2013) (Ginsburg, J., dissenting)
([T]he Civil War Amendments used language [that] authorized transformative new federal
statutes to uproot all vestiges of unfreedom and inequality. (quoting AKHIL REED AMAR,
AMERICAS CONSTITUTION: A BIOGRAPHY 361, 363, 399 (2005))); Reva B. Siegel, Equalitys

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Frontiers: How Congresss Section 5 Power Can Secure Transformative Equality (as Justice
Ginsburg Illustrates in Coleman), 122 YALE LAW JOURNAL ONLINE 267 (2013).
49. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 743 (1997) (Stevens, J., concurring)
([T]he source of [the] right to refuse treatment was not just a common-law rule. Rather, this
right is an aspect of a far broader and more basic concept of freedom that is even older than the
common law. This freedom embraces not merely a persons right to refuse a particular kind of
unwanted treatment, but also her interest in dignity, and in determining the character of the
memories that will survive long after her death.).
50. William H. Rehnquist, The Notion of a Living Constitution, 54 TEXAS LAW REVIEW 693
(1976); SCALIA, A MATTER OF INTERPRETATION, supra note 42, at 37-48.
51. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 136 (1977).
52. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 16, at 13-33.
53. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 51, at 134-36.
54. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 28, at 158-70.
55. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 51, at 136.
56. STRAUSS, LIVING CONSTITUTION, supra note 16, at 33-49, 77-92, 115-39.
57. DWORKIN, LAWS EMPIRE, supra note 30, at 255.
58. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 HARVARD LAW
REVIEW 1231, 1250 (1994); Gary Lawson, On Reading Recipes...and Constitutions, 85
GEORGETOWN LAW JOURNAL 1823 (1997).
59. I interpret Solum as belonging in this camp. SOLUM, CONSTITUTIONAL ORIGINALISM, supra
note 25, at 36-64.

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60. Murphy later developed this argument in his magnum opus. WALTER F. MURPHY,
CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER (2007).
61. See, e.g., Jamal Greene, On the Origins of Originalism, 88 TEXAS LAW REVIEW 1 (2009);
Jack M. Balkin, Why Are Americans Originalist?, in LAW, SOCIETY AND COMMUNITY: SOCIOLEGAL ESSAYS IN HONOUR OF ROGER COTTERRELL 309 (David Schiff & Richard Nobles eds.,
2014). For a critique of Greene, see David Fontana, Response: Comparative Originalism, 88
TEXAS LAW REVIEW SEE ALSO 189 (2010).
62. Ozan O. Varol, The Origins and Limits of Originalism: A Comparative Study, 44
VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1239, 1247-48 (2011) (arguing that the
Turkish Constitutional Court has employed a convoluted combination of most of the versions of
originalism that have found a following in the United States).
63. Bradley Miller, Beguiled By Metaphors: The Living Tree, 22 CANADIAN JOURNAL OF LAW
& JURISPRUDENCE 331, 343 (2009) (The orthodox Canadian view is that while original
intentions or understandings may be relevant to interpretation, the judge may decide that they
have little or no weight.).
64. Jeffrey Goldsworthy, Originalism in Constitutional Interpretation, 25 FEDERAL LAW REVIEW
1, 21 (1997).
65. THE FEDERALIST NO. 1, at 33 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
66. BALKIN, LIVING ORIGINALISM, supra note 16, at 74-81, 361 n.5; Balkin, Why Are Americans
Originalist?, supra note 61, at 315-17.
67. 410 U.S. 113 (1973).
68. Jamal Greene, Selling Originalism, 97 GEORGETOWN LAW JOURNAL 657, 680-81 (2009).

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69. See, e.g., BARNETT, RESTORING THE LOST CONSTITUTION, supra note 18; Douglas H.
Ginsburg, On Constitutionalism, 2003 CATO SUPREME COURT REVIEW 7.
70. See, e.g., RICHARD A. EPSTEIN, HOW PROGRESSIVES REWROTE THE CONSTITUTION (2006).
71. Scalia, Originalism, supra note 43, at 855; SOLUM, CONSTITUTIONAL ORIGINALISM, supra
note 25, at 73-75.
72. Scalia, Originalism, supra note 43, at 852.
73. For the idea of constitutional protestantism, see, e.g., BALKIN, LIVING ORIGINALISM, supra
note 16, at 17-18, 93-99; SANFORD LEVINSON, CONSTITUTIONAL FAITH 40-42 (1988).
74. LEVINSON, CONSTITUTIONAL FAITH, supra note 73, at 9-53; Sanford Levinson, The
Constitution in American Civil Religion, 1979 SUPREME COURT REVIEW 123. See also Jamal
Greene, On the Origins of Originalism, supra note 61, at 7 (Constitutionalism is often called
our civil religion, and the originalism movement that so glorifies the Constitution's original
understanding is conspicuously commingled with an evangelical movement that tends to disfavor
departures from the original meaning of Gods word)
75. Balkin, Why Are Americans Originalist?, supra note 61, at 313.
76. See, e.g., MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note
1.
77. Sanford Levinson, The Specious Morality of the Law, HARPERS, May 1977, at 35, 99 n.*.
78. BALKIN, LIVING ORIGINALISM, supra note 16, at 74-81; Balkin, Why Are Americans
Originalist?, supra note 61, at 317-18.
79. Greene, On the Origins of Originalism, supra note 61, at 63 (Less charitably, Canadian
Supreme Court Justice Ian Binnie is said to have told a New Zealand conference that the

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approach of [his] counterparts in the United States could only be explained by appreciating that
Americans were engaged in a ritual of ancestor worship); Balkin, Why Are Americans
Originalist?, supra note 61, at 317-18.
80. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 1, at 1214.
81. Justice Brennan made a similar argument regarding the need for a moral reading to redeem
our shining city upon a hill. Brennan, Contemporary Ratification, supra note 47, at 445.

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PART II
A Moral Reading or Philosophic Approach

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CHAPTER FOUR
Fidelity Through A Moral Reading or Philosophic Approach
Ronald Dworkin long recognized that the central questions of fidelity in constitutional
interpretation are the fundamental questions of What is the Constitution? and How should it
be interpreted? 1 From his first book, Taking Rights Seriously, through Freedoms Law and
Justice for Hedgehogs, 2 Dworkin argued that commitment to interpretive fidelity requires that
we recognize that the Constitution embodies abstract moral principles rather than laying down
particular historical conceptions and that interpreting and applying those principles require fresh
judgments of political theory about how they are best understood. He called this interpretive
strategy the moral reading of the Constitution. Yet, narrow originalists such as Robert H. Bork
and Justice Antonin Scalia have asserted a monopoly on concern for fidelity in constitutional
interpretation, claiming that fidelity requires following the rules laid down by, or giving effect to
the relatively specific original meaning of the Constitution.3 They have charged that
constitutional theorists who reject these claims are revisionists who disregard fidelity, thereby
subverting the Constitution. Dworkin vigorously and cogently punctured the narrow originalists
pretensions to a monopoly on fidelity, arguing that commitment to fidelity entails that we pursue
integrity with the moral reading of the Constitution and that they, the narrow originalists, are the
real revisionists. 4
I shall analyze two strategies for responding to the narrow originalists claim to a
monopoly on fidelity. Dworkin took the first: Turn the tables on the narrow originalists. He
argued that commitment to fidelity entails the very approach that they are at pains to insist it
forbids, and prohibits the very approach that they imperiously maintain it mandates. The second
is taken by scholars such as Bruce Ackerman, Lawrence Lessig, and Jack Balkin: Beat the

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narrow originalists at their own game. 5 Ackerman, Lessig, and Balkin advance fidelity as
synthesis, fidelity as translation, and the method of text and principle respectively as broad or
living forms of originalism that are superior, as conceptions of originalism, to narrow
originalism. What is broad about their forms of originalism is that they conceive original
meaning at a considerably higher level of abstraction than do the narrow originalists. 6 At the
same time, they argue that the quest for fidelity requires that we reject Dworkins moral
reading. 7 Indeed, Lessig makes the Borkish suggestion that Dworkins project is not one of
fidelity, but one of improvement. 8 Thus, the broad originalists attempt to develop an intermediate
theory between narrow originalism and the moral reading.
Dworkin argued that the search for an intermediate theory is pointless and that the moral
reading is the only coherent strategy for interpreting the Constitution. 9 I shall explore the reasons
for constitutional theorists resistance to the moral reading, and for their persistence in searching
for an intermediate theory in the form of a broad originalism. Dworkin offers one reason: They
are in the grip of an unfounded assumption, the majoritarian premise, which leads them to
reject the moral reading on democratic grounds. In Part II, I critique his analysis and, more
generally, assess his constitutional conception of democracy and his moral reading as a
substantive theory of the Constitution. In Part III, I put forward a second reason, which centers
on the idea of fidelity: They are in the hold of another problematic assumption, the originalist
premise, which causes them to reject the moral reading on fidelist grounds. There I assess
Dworkins moral reading as a theory of constitutional interpretation. Finally, in Part IV, I suggest
that the moral reading is a big tent, and urge liberal and progressive theorists who have resisted
the moral reading in favor of questing for a broad originalism to reconceive their work as coming
within it: in particular, as being in service of the moral reading by providing a firmer grounding

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for it in fit with historical materials than Dworkin offered. (In Chapters 6 and 7, I shall recast
Balkins and Ackermans theories as moral readings.) But first, in Part I, I elaborate what
Sotirios A. Barber and I call the philosophic approach to constitutional interpretation, which is
akin to Dworkins moral reading: both are conceptions of fidelity to the Constitution as written.
I. THE PHILOSOPHIC APPROACH REVISITED: OR, THE MORAL READING
AS A THEORY OF CONSTITUTIONAL INTERPRETATION

Dworkin argued that the quest for fidelity to the Constitution as written calls for a fusion
of constitutional law and moral theory. 10 In Constitutional Interpretation: The Basic Questions,
Barber and I developed a book-length response to that call, defending the philosophic
approach. 11 Here I shall revisit the argument of that book. We acknowledged the objection that
the philosophic approach might prove undemocratic. So we undertook the quest for an approach
that might steer us away from controversies about what we ought to interpret the Constitution to
mean. We considered plain words textualist, consensualist, originalist/intentionalist, structuralist,
and doctrinal approaches, and we saw that none of them can avoid the burdens and
responsibilities of philosophic reflection and choice in hard cases. These considerations brought
us back to the philosophic approach. Can we escape its burdens and responsibilities? If not, we
must ask whether the philosophic approach really is undemocratic. As we consider that question,
lets be clear about what the philosophic approach, properly conceived, is and is not.
A. The Philosophic Approach Illustrated: From Plessy to Brown
We characterized the philosophic approach in rough and common sense terms: thinking
for yourself about what constitutional provisions seem to refer tolike equal protection itself
and due process itself, not anyones specific conceptions of equal protection and due process.
This thinking for yourself must be conducted with an attitude of self-criticism. The good-faith

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interpreter is trying to find out what the Constitution means (or the best interpretation of it); shes
not trying to use the Constitution as a cover for imposing her beliefs on other people. Because
shes adopting a posture of fidelity to the law, she appreciates the inclinations of all subjects of
law to disobey the law. Shes trying to do the right thing by the Constitution, not necessarily her
thing. She appreciates her fallibility. For these reasons, she sees constitutional interpretation as a
self-critical quest for truth about (or the best understanding of) the Constitution which, given her
limitationsand the limitations of the Constitution itself (a document made by humans, after
all)can only mean an interpretation of the Constitution that tries to redeem its expressed claim
to be an instrument of justice, the general welfare, and the other goods listed in the Preamble.
In practice, good-faith constitutional interpretation (after some two centuries of American
constitutional practice) requires a willingness to change our minds about the major and the minor
premises of past constitutional interpretations. We strive for (1) morally and/or scientifically
sound understandings of constitutional provisions that appear in the major premises of legal
syllogisms, and (2) true or sound accounts of the world that appear in minor premises. Consider
applications of the Equal Protection Clause of the Fourteenth Amendment in Plessy v.
Ferguson 12 and Brown v. Board of Education. 13 The change from Plessy to Brown, and other
important changes in constitutional interpretation to be discussed, illustrate the philosophic
approach at work.
Both Plessy and Brown agreed on the proposition of law that occurred in the major
premise, which we paraphrase roughly as: No state shall harm blacks in special ways. Plessys
minor premise can be phrased as: Segregation doesnt harm blacks any more than it harms
whites. By contrast, Browns minor premise is: Segregation is especially harmful to blacks. And
so, the conclusions of the two cases differ, with Plessy saying that segregation is constitutionally

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permissible if transportation facilities are equal, and Brown saying that segregation is
unconstitutional even if tangible educational facilities are equal.
The Brown Courts assumptions about the nature of the Constitution justified the justices
concern with what they saw as a question of fact: the social conditions necessary for equal
educational opportunity. The Court therefore asked how segregation actually affected black
children. The Courts answer might have been wrong when the case was decided, and it might be
wrong today, just as anyone can be wrong about complex matters of fact. But the aim of the
Brown Court was truthfully to describe reality (and to attain a sound understanding of the world),
in this case the real effects of state-mandated segregation on the life chances of black children.
The Plessy Court, although it invoked a conception of the nature of things, 14 aimed at
something other than a true description of reality. It sought to reaffirm the traditions and
practices of a racist, unequal way of life for blacks and whites. The clearest indication of the
Plessy Courts concern with something other than the truth was its statement that the Louisiana
statute requiring segregated railroad cars was not intended to imply the inferiority of black
people. The Court wrote: We consider the underlying fallacy of the plaintiffs argument to
consist in the assumption that the enforced separation of the two races stamps the colored race
with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but
solely because the colored race chooses to put that construction upon it. 15 The historical record
proves this was false when the Court said it and that people generally knew it was false. Here we
need only recall Justice Harlans argument in dissent that everyone knew the real meaning of
enforced segregation: to affix a badge of servitude and a brand of inferiority upon blacks. 16
Those who welcomed the Courts statement might have done so because it gave constitutional
legitimacy to their racial beliefs. They might have done so also because they wanted

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constitutional legitimacy for an unhappy social situation they considered beyond the power of
popular government to remedy. As the Plessy Court put it: Legislation is powerless to eradicate
racial instincts or to abolish distinctions based upon physical differences, and the attempt to do
so can only result in accentuating the difficulties of the present situation. 17 Either way, the
majority justices in Plessy were falsifying reality; they were saying that for constitutional
purposes, segregation doesnt imply racial inferiority, even though everyone knows it does as a
matter of social-scientific fact. (As we noted in Constitutional Interpretation: The Basic
Questions, there are affinities between this analysis of Brown and Plessy and that of the joint
opinion in Planned Parenthood v. Casey (1992), which analyzed Browns overruling of Plessy in
terms of a change in understanding of the facts. 18)
Turning now from the minor premise of the legal syllogism (a factual premise) to the
major premise (a proposition of law), the history of the Equal Protection Clause provides
numerous examples of changed interpretations. The Fourteenth Amendment says no state shall
deny equal protection, and several nineteenth-century cases said that the clause applied only to
the state governments, not the national government. The Court changed its mind about this in
Bolling v. Sharp (1954), a companion case to Brown. The Bolling Court found that the idea of
equal protection was embodied in the Due Process Clause of the Fifth Amendment, which is
applicable to the national government. The guarantees of equal protection and due process both
expressed what Chief Justice Warren called an American ideal of fairness. Precisely because
of this ideal, said Warren, it would be unthinkable that the same Constitution would impose [a
duty on the states to end segregation and] a lesser duty on the Federal Government. 19 What
probably made this unthinkable to the Court was that there seemed no way to justify letting the

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national government violate an American ideal of fairness. If segregation by the states
offended this ideal, how could segregation by the national government offend it any less?
In Pace v. Alabama (1883), the Court accepted an equal application theory of the Equal
Protection Clause. 20 According to that theory, a statute punishing fornication between persons of
different races more than fornication between persons of the same race did not deny equal
protection because the same penalty applied to each member of the interracial couple. The state
of Virginia relied on Pace in defense of its law against interracial marriages. In Loving v.
Virginia (1967), the Court overruled Pace and struck down that law. In rejecting the equal
application theory of Pace, the Loving Court started with a statement of the Fourteenth
Amendments clear and central purpose: to eliminate all official state sources of invidious
racial discrimination. 21 To achieve this end, the Court would treat all statutes containing racial
classifications as constitutionally suspect and demanding the most rigid scrutiny to
determine if they served some permissible state objective, independent of racial
discrimination. The Court found that Virginias purpose of preserving racial integrity or
White Supremacy failed this test. 22 A fundamental right to marry a person of ones choice
protected by the Due Process Clause provided the Court with a second reason for invalidating the
Virginia law. 23 The state may not exercise its traditional power to regulate marriage in a way that
abridged this fundamental freedom of interracial couples.
In The Slaughter-House Cases (1872), the Court stated that the Equal Protection Clause
protected newly-freed African Americans. Indeed, the Court wrote: We doubt very much
whether any action of a State not directed by way of discrimination against the negroes as a
class, or on account of their race, will ever be held to come within the purview of this
provision. 24 This would have excluded protection (under that clause) for women, religious

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groups, the aged, gays and lesbians, and others. But Slaughter-Houses restrictive view of the
Equal Protection Clause was untenable from the beginning for precisely the reason that
motivated adoption of the Clause: the sense that blacks share a common humanity with whites. If
this justifies the Equal Protection Clause, then all who share that common humanity (all classes
of innocent persons) have claims under it. 25 The Court eventually responded to that principle,
and today it finds protections in that clause for women, religious groups, gays and lesbians, and
other (though not yet all) classes of innocent persons. All of the foregoing changes of mind,
concerning understandings of both fact and law, illustrate the philosophic approach. All involve
moral judgments about common humanity.
B. The Philosophic Approach and the Teachings of Famous Philosophers
In their willingness to reconsider the major and minor premises of past constitutional
interpretations, practitioners of the philosophic approach are expected to think self-critically for
themselves. They have to think self-critically about the best interpretation of our constitutional
text, history, and structure. They have to reflect critically upon our aspirations in striving for the
interpretation that makes the Constitution the best it can be. In doing this, they may well find
themselves influenced by the great thinkers of the past or the present. After all, judges and others
actively interested in the problems of constitutional meaning are usually educated people, with
some exposure to the great thinkerswriters known to be such precisely because of the
persuasive quality of their thought. But the goal of the philosophic approach is truth (or the best
understanding of our Constitution) as distinguished from opinionanyones opinion, including
the opinions of great philosophers. The truly philosophic judge, therefore, would not apply the
teachings of any of the great thinkers in a doctrinaire fashion. She would never find herself
saying something like Locke says government is established to protect property, not the natural

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environment, therefore environmental regulations are constitutionally suspect. Or Aristotle
says the fetus has no soul before quickening, therefore a woman has the right to an abortion in
the first trimester.
Think about these two examples and youll see that they represent a kind of concrete
intentionalism. 26 They put particular philosophers in the place of the Constitutions framers, and
they try to reach conclusions in hard cases from the definitions or applications of those
philosophers. Thus conceived, the philosophic approach would be no more defensible than the
forms of concrete intentionalism criticized in Constitutional Interpretation: The Basic Questions.
Reasoning from a philosophers past applications of general ideas would lock us (no pun) into a
particular view of reality that would in turn force us into falsifying reality, just as the Brown
Court would have done had it reaffirmed Plessy. The same holds for a philosophers definitions.
They would be just like anyone elses definitions: mere versions of the things defined and, as
such, correctable in light of better theories of those things. And adopting the mindset of a
particular philosopher would reject the philosophic aspect of that very mindset, since
philosophers typically claim an interest in truth, not any particular slant on truth, including their
own. Philosophers as philosophers think for themselves, and a judge who adopted the mindset of
a philosopher would adopt that aspect of the mindset which makes the philosopher a philosopher:
a willingness to think for oneself in self-critical quest for the truth (or the best account).
C. Would the Philosophic Approach Require Replacing Judges With Philosophers?
The answer to this question is a clear no, and for several reasons. To begin with, judges
have a job to do, a job theyre paid to do. They work for and are responsible to people other than
themselves. They do not live lives that are as free as that which Plato describes in the Apology of
Socrates, the classical account of the philosophic life in its purest form. 27 The job of judges,

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moreover, involves fidelity to the law, and the law can proceed from beliefs about moral and
scientific reality that are far from true, maybe even far from a reasonable approximation of the
truth. Take the fugitive slave clause of Article IV, 2 of the Constitution. It basically required
that escaped or fugitive slaves be returned to their owners. If this clause proceeded from a false
conception of justice, a philosopher as such could not deny that it did, while a judge held to an
oath of fidelity to the law (including this unjust clause) might have to do so or in any event
enforce it nonetheless. Probably the best that our philosophic judge could do would be to give
the fugitive slave clause that interpretation which came as close to her best conception of justice
as the clause might admit, like requiring full due process and a presumption of freedom in any
proceeding for returning alleged fugitive slaves to their masters. 28 But because even the best
interpretation of the clause would be forced to honor the false conception of justice embodied in
it, the philosophic judge would still be participating in injustice. An obligation of fidelity to the
law is essential to judging, not to philosophy. In fact, where conditions permit, philosophic
inquiry will go as far beyond law and other forms of social convention as the imagination, skills,
insight, and courage of individual philosophers will reach, as Socrates proved in The Republic of
Plato when he proposed the destruction of the family and the outrageous community of wives
and children. 29 In Meyer v. Nebraska (1923), the Supreme Court illustrated the philosophic
approach in concluding that such ideas touching the relation between individual and the state
were wholly different from those upon which our institutions rest. 30
But if philosophers cant be judges, that doesnt mean judges cant adopt philosophic
methods and attitudes. Following the law does not preclude thinking self-critically about the best
that the law could mean within the limits of the laws language and what the community will
accept. (Even a philosophic judge could have approved of the Courts prudential delay of more

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than ten years after Brown before overruling Pace in Loving. 31) Judges certainly cannot follow
the law of the American Constitution without thinking for themselves. This is precisely what
Dworkin argued and Barbers and my analysis in Constitutional Interpretation: The Basic
Questions confirmed. We argued that plain words force judges to think for themselves because
the words refer to concepts like due process itself and equal protection itself, not to anyones
specific conception of due process and equal protection. We saw that consensus cant help us in
hard cases because, in hard cases, there is no consensus. We showed that all admissible
conceptions of originalism force judges to think for themselves in hard cases. And we saw that
neither constitutional structures nor old judicial doctrines can free judges from a responsibility to
think for themselves. Judges can think for themselves covertly, as Justice Black did in dissent in
Griswold v. Connecticut (1965) when he construed the Ninth Amendment into insignificance for
the sake of his (controversial) notion of democracy that precluded protection of unenumerated
rights. 32 Or they can think for themselves openly, as Black did when he joined a unanimous court
in Brown. But they cant avoid thinking for themselves. Thus, they cant responsibly avoid the
philosophic approach.
We emphasize that the philosophic approach does not involve judges or other interpreters
doing moral and political philosophy without regard to the commitments of our constitutional
order. But it does involve making philosophic choices in elaborating the meanings of our
constitutional commitments. In doing so, judges strive for the true meaning or best account of
those commitments. Some jurists and scholars have objected that judges simply are not capable
of discharging this responsibility: that, under the philosophic approach, judges must be Platonic
philosopher-judges living on Olympus. 33 In fact, all the philosophic approach requires is that

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judges take responsibility for the kinds of philosophic choices that they have been making all
along down here in the U.S.A.
D. The Philosophic Approach and Other Approaches
The philosophic approach is a kind of textualism, albeit not Justice Blacks plain words
textualism. For the philosophic approach describes the text for what it facially appears to be: an
ends-dedicated scheme of institutional rules, enabling rules, and rights, phrased more often than
not as referring to general goods and principles. On its face, the Constitution is not a detailed
code of conduct or an enumeration of definitions or concrete illustrations and examples. Justice
Black saw textualism as an antidote to philosophic reflection and choice; Dworkin has shown
how fidelity to this particular text as written necessitates a fusion of constitutional law and
political philosophy. And Barber and I confirmed that position.
But our argument for the philosophic approach doesnt exclude considerations associated
with other approaches, as we acknowledged in Constitutional Interpretation: The Basic
Questions in calling for a fusion of philosophic and other approaches. The philosophic approach
embraces structuralism, for example, both because structuralism is a kind of textualism (looking
to structures suggested by the text) and because philosophic judges understand that questions of
moral and political philosophy must be answered in elaborating constitutional structures. This is
clear when elaborating the basic structure of federalism, the character of separation of powers,
and the form of democratic self-government embodied in the Constitution. This is especially
clear when deciding on the basic normative qualities of the Constitution taken as a whole:
whether it is to be conceived as a charter of benefits the government is obligated to pursue, like
national security and the general welfare, or merely as a charter of negative liberties against the
government. 34

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The philosophic approach is also fully compatible with, if not equivalent to, abstract
originalism, properly understood. In Constitutional Interpretation: The Basic Questions, Barber
and I show that it can encompass broad originalism. The philosophic approach is clearly opposed
to concrete forms of originalism as well as to conventional understandings of consensualism and
doctrinalism. As these positions are usually understood, they share a feature that is antithetical to
the philosophic approach: they posit some sort of authority as the source of moral truth. The
concrete originalist sees the truth about justice and fairness, for example, to lie in the authority of
some original definer or applier of these terms. The consensualist finds truth about these terms in
public opinion, and the doctrinalist finds it in the definitions and applications of old courts.
These positions see authority as the source of truth; the philosophic approach takes truth and its
responsible quest as the source of authority. That said, consensus and doctrine may well be
understood to embody truths without being viewed as the source of those truths. If so, they are
not antithetical to but are compatible with the philosophic approach: for example, as I argue in
the next chapter, we might view precedents as resources or factors in constitutional
interpretation.
E. Implications for Ordinary Citizens
The philosophic judge is a judge with a certain attitude: a public-spirited and self-critical
concern for doing her duty under the Constitution as written. The good citizen of the Constitution
will support judges of this kind and the institutions that produce them. As for what the people
expect from judges, some evidence may lie in the facts of public behavior. The public permits
judges to think for themselves without depriving them of their right to be judgeseven when
their critics say they have ignored the law or made it meaningless. (Calls to strip courts of
jurisdiction to hear claims asserting certain rights or calls to impeach judges who interpret the

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Constitution to protect certain rights almost invariably fail and are met with reaffirmations of
judicial independence.) You could agree with Justice Millers critics that he ignored the
Privileges or Immunities Clause or rendered it meaningless in Slaughter-House. 35 You could say
that Justice Black ignored the Ninth Amendment and tried to make it meaningless in Griswold. 36
And by their own lights Miller and Black would have flouted other constitutional principles, like
federalism and democracy, had they done what their critics wanted. So no matter how Miller
would have gone in Slaughter-House and Black in Griswold, they would have thought for
themselves to what their critics would have called objectionable conclusions, and they would
have expressed what they regarded as fidelity to the law.
We dont deny that Miller and Black were unfaithful, respectively, to the Privileges or
Immunities Clause and the Ninth Amendment. We say that their views of the larger principles of
the Constitutionand their fidelity to those principlesmay have forced them to see these
particular provisions as mistakes. 37 American judges openly pronounce statutes unconstitutional
and precedents mistakes, even when they enjoy popular support, as statutes segregating public
schools along with Plessy did among southern whites at the time of Brown. So the public has
accepted judges who think for themselves to the detriment of conventionincluding convention
that takes the form of established constitutional provisions and longstanding statutes and
precedents. The public has thus accepted judicial conduct that has some parallels to philosophic
conduct.
Judges can think for themselves covertlyas when Black pretended in Griswold that his
position flowed from plain words rather than a controversial conception of democracy. Or judges
can think for themselves openlyas when the Brown Court set forth its arguments and evidence

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that forced segregation hurts minorities. Which way is better from the perspective of fidelity to
the law?
When Black pretended to be following plain words in Griswold, he in effect pretended
that his conceptions of due process, unenumerated rights, and democracy were the law rather
than what they actually were: controversial and possibly wrong versions of the law. Had Black
been more interested in the law than in his theories of the law, he would have been sensitive to
the difference, and he would have found a way to present his conceptions as just that: things
submitted to the kind of public-spirited debate that brings us closer to the truth (or to better
understandings of constitutional principles). Black did better by the law when he joined his
brethren in Brown.
We can summarize the argument in Brown as follows: The best available evidence shows
that Plessy is wrong about the impact of segregation on minority children in the modern world;
segregation harms those children. This argument implicitly affirms not only its result but also the
method through which one establishes its result, the method of continually testing old
propositions against fresh evidence. That very method could one day reverse the factual
proposition of Brown, for the world could change again. The methodological message of Brown
is that the Courts doctrines are but theories of the law, not the law itself, and that the law itself
prohibits those practices that actually harm minority groups in special ways. The justices who
joined in Brown were not philosophers, but they displayed the attitude of philosophers by using a
method that implicitly distinguishes doctrine from truth and subordinates doctrine to truth.
Brown illustrates what fusing constitutional law and political philosophy should mean in
practice.

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When Dworkin called for a fusion of constitutional law and political philosophy, he
called not for compromising the Constitution, but for honoring its commitments as faithfully as
possible. Since the Constitution delivers its message in written words and sentences that refer,
among other things, to authors (We the People), addressees (ourselves and our Posterity),
purposes (Justice, Domestic Tranquility), and institutions (The Executive Power shall be
vested in a President), a philosophic approach is essential to being faithful to the Constitution
itself. The philosophic approach incorporates a proper concern for plain words, intentions, and
structures. To see this, we need only review what weve already covered: The Equal Protection
Clause plainly refers to equal protectionthat is, to equal protection itself. And though the
demands of equal protection may not be evident to us, we can hope to improve our
understanding through a self-critical and responsible quest for the best available arguments and
evidence concerning its meaning and application. The same holds for our conceptions of
constitutional structures, which the Preamble describes as instruments of abstract ends, like
Justice and a more perfect Union, intended by We the People. The practical meaning of
these ends and structural means is very far from clear to us, but here again, we can hope to
improve our conceptions through an open and self-critical quest for the best evidence and
arguments on these matters. And whoever the framers and ratifiers were, its hard for an
intentionalist to conclude that they intendedor the Constitution meantsomething less than
that to which the ratified document refers: justice, equal protection, and other things whose
practical meaning we can pursue only through philosophic methods, attitudes, and choices. For if
we say the Constitution originally meant something lesslike the framers and ratifiers
concrete conceptions of justice, whether really just or notwe are attributing a fraud to the
Constitution and to them, and thats not something an originalist or intentionalist wants to do.

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We would be saying that the framers and ratifiers were authoritarians determined to impose their
concrete expectations upon us, not practical statesman committed to ordaining and establishing a
framework of constitutional self-government that might be adequate to further the abstract ends
proclaimed in the Preamble: a Constitution that might be worthy of our fidelity.
II. THE MORAL READING AND THE MAJORITARIAN PREMISE:
OR, THE MORAL READING AS A SUBSTANTIVE THEORY OF THE CONSTITUTION
Dworkin argued that the moral reading of the Constitution is more faithful than the
originalist strategy is to the text of the Constitution and the conception of democracy it
presupposes. He contended that the only substantial objection to the moral reading, which takes
the text seriously, is that it offends democracy. Moreover, he argued that constitutional lawyers
and scholars who make this objection are in the grip of an unfounded assumption, the
majoritarian premise. This is the assumption that the fundamental value or point of democracy
is commitment to the goal of majority will. This premise undergirds a majoritarian conception of
democracy that is not true to our scheme of government and that indeed obscures the true
character and importance of our system. As an alternative, Dworkin offers a constitutionalist
conception of democracy which conceives the fundamental point or value of democracy to be
concern for the equal status of citizens. 38 I believe that Dworkins arguments for the moral
reading and against democratic objections rooted in the majoritarian premise are sound. But I
shall criticize his formulation of a constitutionalist conception of democracy and his own moral
reading as a substantive theory of the Constitution.
First, Dworkin is right to lay bare and criticize the majoritarian premise and the
majoritarian conception of democracy that stems from it. For too long, that premise and
conception have hobbled constitutional theory by providing a misguided and misleading account

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of our constitutional scheme. They have driven constitutional theorists to regard as deviant or
anomalous certain integral features of that scheme. Most famously, that premise and conception
underlie Alexander M. Bickels anxious claim that judicial review is a deviant institution that
poses a counter-majoritarian difficulty in our democracy. 39 Dworkin in effect turns Bickel on
his head, 40 for Dworkins formulation of the majoritarian premise as an unfounded assumption
is the inverted mirror image of Bickels formulation of the counter-majoritarian difficulty as
the root problem. On Dworkins view, the fact that many constitutional theorists are obsessed
with the counter-majoritarian difficulty presents a serious problem, because it obscures from
them the true character of our systemit is not majoritarian but constitutionalistand prevents
them from embracing the moral reading.
But Dworkin would be wrong to suggestand I do not believe that he does sothat all
democratic objections to the moral reading, in particular those advanced by the broad
originalists, are rooted in the majoritarian premise and the majoritarian conception of democracy.
For example, Sunstein makes democratic objections to Dworkins moral reading from the
standpoint of his own non-majoritarian conception of democracydeliberative democracyand
of his minimalist conception of constitutional interpretation. 41 Moreover, Sunstein advances
these objections through developing an alternative moral reading of the Constitutionfor
example, arguing that the Constitution embodies a political theory of deliberative democracy and
making second-order perfectionist arguments for minimalism in a deliberative democracy
rather than rejecting completely the idea of a moral reading. This form of criticism is presumably
the type that Dworkin would welcome, for it engages the idea of a moral reading rather than
wholly rejecting it.

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Second, Dworkin is correct in arguing that a constitutionalist conception of democracy
better fits and justifies our constitutional text and practice than does a majoritarian conception of
democracy. Dworkin famously criticized John Hart Elys process-perfecting theory, put
forward in the book, Democracy and Distrust, for taking a flight from substance to process 42
including fleeing protecting substantive liberties like an individuals freedom to make ethical
choices for himself 43 to protecting only procedural liberties like the right to vote. And he
developed a substantive conception of constitutional democracyor a partnership viewas an
alternative to Elys procedural conception of majoritarian democracy. The partnership view of
democracy holds that the people govern themselves each as a full partner in a collective
political enterprise so that a majority's decisions are democratic only when certain further
conditions are met that protect the status and interests of each citizen as a full partner in that
enterprise. 44 Majority support, just on its own, does not supply a moral reason for what the
majority supports; ideas drawn from political morality about justice, equality, and liberty
should inform our views about what is a democratic decision. 45 Thus, [t]he partnership
conception ties democracy to the substantive constraints of legitimacy. 46 He is persuasive in
contending that protection of, and respect for, rights that are the conditions for moral
membership in our political communityrooted in equal concern and dignityare themselves
preconditions for the legitimacy of the outcomes of majoritarian political processes. 47 Here
Dworkindespite his criticism of Elyappears to have taken a page out of Elys book in
conceiving our rights as democratic conditions and in arguing that courts protecting
constitutional rights guarantee democracy rather than compromise it. But unlike Ely, Dworkin
would include, among the conditions of democracy, certain substantive rights rooted in equal
concern and dignity in addition to procedural rights like the right to vote. 48

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Dworkin powerfully expressed the conditions for moral membership in our political
community. But I would recast the architecture of his constitutional theory to differentiate it
more sharply from that of Elys process-perfecting theory. Characterizing all of our substantive
and procedural rights as democratic conditions, as Dworkin did, may lead to unnecessary
trouble and resistance. Many readers may resist his argument that substantive rights grounded in
equal concern and dignity are democratic conditions. Even if they grant that both substantive
and procedural rights must be protected for the outcomes of the majoritarian political processes
to be legitimate or trustworthy, they may suspect that he is pulling a fast one or being too clever
by packing all of the substantive rights that constrain majoritarian political processes into the
democratic conditions. 49 To observe, as Dworkin might, that such readers objections seem to
presuppose the unfounded majoritarian premise may be true, but unhelpful if the aim is to
persuade them to abandon it.
I believe that there is a more straightforward and plausible theoretical structure through
which to present conceptions of constitutional democracy like Dworkins. In Securing
Constitutional Democracy, I criticize the architecture of constitutional theories such as those of
Ely and Sunstein, which attempt to frame or recast all of our basic liberties, both substantive and
procedural, as preconditions for representative or deliberative democracy. 50 I argue instead for a
constitutional constructivism, 51 a conception of constitutional democracy with two fundamental
themes: first, securing the basic liberties that are preconditions for deliberative democracy, to
enable citizens to apply their capacity for a conception of justice to deliberating about the justice
of basic institutions and social policies, and second, securing the basic liberties that are
preconditions for deliberative autonomy, to enable citizens to apply their capacity for a
conception of the good to deliberating about and deciding how to live their own lives. Together,

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these themes for securing constitutional democracy afford everyone the common and guaranteed
status of free and equal citizenship in our morally pluralistic constitutional democracy. (This
conception has affinities to Dworkins view that the fundamental point or value of our scheme of
government is concern for the equal status of citizens.) I offer my account as the guiding
framework that best fits and justifies our constitutional text and underlying constitutional order.
Moreover, I contend that there are good reasons for conceiving our basic liberties in
terms of securing the preconditions for deliberative democracy and deliberative autonomy
instead of framing them as, or reducing them into, preconditions for democracy. 52 The first
reason is prophylactic: Articulating a constitutional constructivism with these two themes
protects us against taking flights from substance to process by recasting substantive liberties as
procedural liberties or neglecting them. The second, related reason is architectonic: Presenting
our basic liberties in these terms illustrates that the two fundamental themes of deliberative
democracy and deliberative autonomy are co-original and of equal weight. The third, more
general reason is heuristic: Articulating our basic liberties through these two themes keeps in
view that our constitutional scheme is a dualist constitutional democracy, not a monist or
majoritarian representative democracy. A final reason is elegance: the importance of being
elegant (though not too reductive) in constructing a constitutional theory. I originally advanced
these reasons for adopting the architecture of a constitutional constructivism with the foregoing
two themes as part of a critique of the architecture of process-perfecting theories such as Elys
and Sunsteins, which recast our basic liberties, substantive and procedural, as preconditions for
representative democracy or deliberative democracy, but they also apply with some force to the
architecture of Dworkins conception of such basic liberties as preconditions for democracy.
That is, the architecture of a constitutional theory with these two themes, which together secure

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the preconditions for constitutional democracy, has these advantages over the architecture of
Dworkins theory.
Third, Dworkin never developed a moral reading as a general substantive liberal theory
of our Constitution and underlying constitutional democracy. To be sure, he wrote powerfully
and cogently about the major constitutional issues of the day, and did so from a coherent and
consistent viewpoint. Indeed, no one has made greater contributions to constitutional theory than
Dworkin. But he did not work up a comprehensive yet elegant account of our basic liberties and
constitutional essentials as a substantive theory to beat Elys and Sunsteins process-perfecting
theories.
That has been my project throughout all of my work. I have sought to develop a
Constitution-perfecting theory as an alternative to the process-perfecting theories advanced by
Ely and Sunstein. 53 According to the latter theories, the Constitutions core commitment is
democracy, and judicial review is justified principally when the processes of democracy, and
thus the political decisions resulting from them, are undeserving of trust. Process-perfecting
theories are vulnerable to the criticism that they reject certain substantive liberties (such as
privacy, autonomy, liberty of conscience, and freedom of association) as anomalous in our
scheme, except insofar as such liberties can be recast as procedural preconditions for democracy.
Yet process-perfecting theories persist, notwithstanding such criticisms, because no one has done
for substance what Ely has done for process. That is, no one has developed an alternative
substantive Constitution-perfecting theorya theory that would reinforce not only the
procedural liberties (those related to deliberative democracy) but also the substantive liberties
(those related to deliberative autonomy) embodied in our Constitution and presupposed by our
constitutional democracywith the elegance and power of Elys process-perfecting theory.

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That is what my book, Securing Constitutional Democracy, aspires to do. Again, I
develop a Constitution-perfecting theory that secures both the substantive liberties associated
with deliberative autonomy and the procedural liberties associated with deliberative democracy
as fundamental, without deriving the former from the latter or, worse, failing to account for
substantive liberties altogether. Unlike process theories, it provides a firm grounding for rights of
privacy and autonomy, along with liberty of conscience and freedom of association, as necessary
to secure individual freedom and to promote a diverse and vigorous civil society. My theory also
shows how basic liberties associated with personal autonomy, along with those related to
democratic participation, fit together into a coherent scheme of basic liberties and constitutional
essentials that are integral to the Constitution and its underlying constitutional democracy. The
architecture of such a Constitution-perfecting theory can comfortably house all of what Dworkin
conceives as the conditions of moral membership in our political community without recasting
substantive liberties limiting majorities as democratic conditions. On this theory, we perfect
the whole substantive Constitution, not merely the partial procedural Constitution. (In Ordered
Liberty, Linda McClain and I argue for a mild perfectionist formative project of cultivating the
civic virtues and fostering the capacities that are preconditions for constitutional self-government
in the senses of deliberative democracy and deliberative autonomy. 54 This is another aspect of a
Constitution-perfecting theory or moral reading not developed in Dworkins work.)
Furthermore, Dworkin was right to conceive courts as a forum of principle, 55 while
recognizing that legislatures and executives should also be guardians of principle. 56 Some
liberals and progressives, emphasizing Dworkins conception of courts as the forum of
principle, have criticized his theory for being too court-centered, for ignoring the Constitution
outside the courts, 57 or for exalting We the Judges over We the People. 58 That criticism,

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although understandable, is plainly overstated. Dworkin always made clear that legislatures,
executives, and citizens also have responsibilities to interpret the Constitution. 59 Sanford
Levinson recognized this early on, and appropriately interpreted Dworkin as a constitutional
protestant instead of a court-centered catholic on the question, Who is to interpret the
Constitution? 60 I return to these matters in Chapters 6 and 7 in assessing Balkins and
Ackermans resistance to Dworkins moral reading.
Finally, Dworkins development of the moral reading makes it sound more utopian than it
should, triggering objections that he propounds a theory of the perfect Constitution. 61 To be
fair to him, he contends that the moral reading is constrained by the requirements of fit and
integrity: thus, it is bound to account for the legal materials of the existing constitutional order
and practice. 62 And so, even if Dworkins theory of constitutional interpretation aims to provide
the best interpretation of these legal materialsto make the Constitution the best it can beit is
not unbounded.
Nonetheless, some critics charge that Dworkins moral reading is utopian in two senses.
One, it is a moral reading for a perfect liberal utopia: he would interpret the American
Constitution to protect every right and produce every outcome that his liberal political
philosophy would entail. And two, it is literally a theory for no place: he would give the same
moral reading irrespective of the actual history and practice of the constitutional scheme, for
example, the same for Britain as for the U.S.A. I do not believe that such critics are right about
his moral reading, but they certainly are persistent and warrant a fuller response than simply
directing them to read Dworkin more carefully.
When confronted with the perfect Constitution challenge, Dworkin basically pleaded (I
paraphrase): I do not believe the American Constitution is perfect. For example, while I do

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believe that justice requires welfare rights, I do not believe that the Constitution protects such
rights. To continue our paraphrase: Your challenge applies to Frank Michelmannot me
because henot Ibelieves that the Constitution does protect welfare rights. 63 Beyond that,
Dworkin was at pains to make clear that the constraints of fit and integrity entail that the actual
Constitution is imperfect when measured against the standards of any normative political
philosophy or conception of justice.
My tack for responding to the perfect Constitution challenge to Dworkins moral reading
is to show how Lawrence G. Sagers justice-seeking account of American constitutional practice
helps meet the challenge, in particular, through its accounts of the thinness of constitutional
justice and more particularly of the moral shortfall of judicially enforceable constitutional law.
Sager argues that certain constitutional principles required by justice are judicially
underenforced, yet nonetheless may impose affirmative obligations outside the courts on
legislatures, executives, and citizens generally to realize them more fully. Sagers view is an
important component of a full moral reading or justice-seeking account of the Constitution. For it
helps make sense of the evident thinness or moral shortfall of constitutional law. For example,
instead of saying that the American Constitution does not secure welfare rightsthe move that
Dworkin makesSager says that the Constitution does secure welfare rights, but it leaves their
enforcement in the first instance to legislatures and executives. Once a scheme of welfare rights
and benefits is in place, courts have a secondary role in enforcing it equally and fairly. 64
Furthermore, if Dworkins moral reading of the American Constitution, though it
embodies abstract moral principles, does not incorporate all the important principles of justice,
we need an account of the difference between the two. Because Dworkin does not offer such an
account, he may leave his readers wondering whether his theory entails that the Constitution is a

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perfect liberal Constitution. To be sure, the constraints of fit and integrity entail a gap between
the Constitution and justice. But Dworkin says little about any such gap, and what he does say
implies that the gap may be narrow. For example, he says that the Constitution is abstract, and
therefore it should come as no surprise that any right we can argue for as a matter of political
morality we can also argue for as a matter of constitutional law. 65 And where he does
acknowledge a significant gap between the Constitution and justice, for example, with welfare
rights, he does not provide a general account of why the Constitution as he conceives it does not
incorporate elements of justice like welfare rights.
Sagers account of the domain of constitutional justice helps in this regard. He
distinguishes (1) judicially enforceable constitutional law from (2) constitutional justice, which
he in turn distinguishes from (3) political justice and (4) morality generally. 66 Imagine a series of
progressively thicker concentric circles representing these four domains. Dworkins highly
general formulation of the moral reading may seem to blur the distinction between
constitutional law and constitutional justice, as well as that between constitutional justice and
political justice, and indeed that between constitutional law, on the one hand, and political justice
and morality generally, on the other. His hedgehogist commitment to the integration of ethics,
morality, and justice may further blur these distinctions. Sagers justice-seeking account
underscores just how thin a moral reading of the Constitution has to beas compared to our
thicker conceptions of political justice and moralityin order to be credible as an account of
American constitutional practice.

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III. THE MORAL READING AND THE ORIGINALIST PREMISE:
THE BROAD ORIGINALISTS RESISTANCE TO THE MORAL READING
Next, I shall consider another reason why scholars and judges have resisted the moral
reading, which centers on the idea of fidelity: They are in the grip of what I have called the
originalist premise. As explained in Chapter 1, this is the assumption that originalism, rightly
conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation.
The originalist premise leads conventional originalists to object to the moral reading on the
ground that it is nonoriginalist, revisionist, or not faithful to the Constitution. In recent
years, the originalist premise has also been manifested in varieties of broad originalism in liberal
and progressive constitutional theory (here I am distinguishing the broad originalism of
Ackerman, Lessig, and Balkin from the new originalism of Solum, assessed in Chapter 2). I
believe that the originalist premise, as much as the majoritarian premise, drives the broad
originalists resistance to Dworkins moral reading.
In this section, as well as in Chapters 6 and 7, I shall examine several reasons why some
liberal and progressive constitutional theorists have resisted Dworkins moral reading in favor of
searching for an intermediate theory in the form of a broad originalism. More generally, I discuss
the reasons for the emergence of broad originalism. I contend that none is a good reason for the
broad originalists not to endorse the moral reading, properly conceived. My general stance is to
support broad originalism to the extent that its proponents undertake it in service of the moral
reading, but to criticize it to the extent that they believe it is sustainable as an alternative to it.
A. The Turns to History and to Text, History, and Structure
First, the broad originalists seek to reclaim history, and indeed the aspiration to fidelity,
from the narrow originalists. They believe that liberals and progressives ignored or neglected

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history for so long that they practically ceded it to conservatives. 67 The broad originalists
undertook the turn to history to show that their constitutional theories, aspirations, and ideals
are firmly rooted in our constitutional history and practice, and indeed provide a better account
of our constitutional text and tradition than do those of the conservative narrow originalists.
The liberal and progressive project of reclaiming history and fidelity from the narrow
originalists is understandable and laudable. But it is understandable and laudable if undertaken in
service of the moral reading, not as an alternative to it. This project would explain a turn to
history, but not necessarily a turn to originalism. They are not the same thing. And it would
explain a turn to history in order to pursue a historically grounded moral reading. But it would
not necessarily explain a turn to history that turns away from the moral readingas if we
somehow could avoid the normative judgments required by a moral reading. Why not conceive
the turn to history as doing fit work in support of a liberal or progressive moral reading rather
than as a broad form of originalism that rejects the moral reading?
Second, more generally, these liberals and progressives aim to ground their arguments in
the text, history, and structure of the Constitution, and they believe that a broad originalism is
more promising along these lines than is the moral reading. Some recite this trilogy of sources of
constitutional meaning as if it were a litany. Like the turn to history, the turn to text, history, and
structure is an understandable and worthy project. Liberals and progressives should firmly
ground their arguments in text, history, and structure, not to mention practice, tradition, and
culture. But this turn is not necessarily a turn to originalism and against the moral reading.
Indeed, recourse to structure in constitutional interpretation typically involves drawing
inferences from political theory, not merely recovering, translating, or extrapolating from the
original meaning of the text.68 The turn to text, history, and structure becomes a turn against the

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moral reading only if its proponents claim to be elaborating text, history, and structure without
making recourse to political theory. Such a claim would be problematic and implausible. Why,
then, do the liberal and progressive enthusiasts of text, history, and structure cast their arguments
as broad originalist arguments rather than as arguments in support of better grounding the moral
reading?
Third, I suggest that the answer to this question is to be found in considerations of
litigation strategy or judgments about the types of arguments that are appropriate in our
constitutional culture. The thought seems to be that our constitutional culture is largely
originalist (or positivist), and therefore that arguments in constitutional law, to be successful,
simply must be framed in an originalist (or historicist) mold. A view of this sort seems to
animate the work of broad originalists such as Ackerman, Balkin, and Akhil Amar. I have heard
a strong version of this view articulated roughly as follows: The only way that liberals and
progressives have any hope of persuading Justice Scalia to accept their interpretations of the
Constitution is to make originalist arguments.
To this view I have four responses. (1) The attempt to persuade Scalia that fidelity to the
Constitution leads to any liberal or progressive conclusions is a fools errand. There can be no
serious doubt that Scalias mind is ideologically impervious to liberal or progressive
constitutional arguments. 69 Worse yet, this attempt disfigures and debases constitutional theory
by causing theorists to recast their arguments in a narrow originalist mold dictated by Scalia.
(2) It is telling that the greatest liberal constitutional theorist-litigator of our time,
Laurence H. Tribe, has not adapted his constitutional theory to such an originalist litigation
strategy. To be sure, he has eschewed grand theory, as if to say, no theorists here, just us

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common lawyers. But his conception of constitutional interpretation in his academic writing is
much closer to Dworkins theory than to the broad originalist views of Ackerman and Amar. 70
(3) Our constitutional culture is not as originalist as the broad originalists seem to
assume. It certainly requires constitutional lawyers and scholars to pay homage to history and to
fit with historical materials, but that is not to say that it is originalist. 71 As discussed in Chapter
1, originalism is an ism, a conservative ideology that emerged in reaction against the Warren
Court. Before Richard Nixon and Robert Bork launched their attacks on the Warren Court,
originalism as we know it did not exist. 72 Constitutional interpretation in light of original
meaning did exist, but original meaning was regarded as merely one source of constitutional
meaning among several, not a general theory of constitutional interpretation, much less the
exclusive legitimate theory. Indeed, history was regarded as secondary to, and merely as
extrinsic evidence of, the meaning of text and structure. Scholars wrote about the uses of
history in constitutional interpretation rather than contending that enforcing original meaning
was the only defensible conception of fidelity. 73 Moreover, original meaning, especially at a
relatively specific level, was understood to be largely indeterminate and inconclusive. As Justice
Jackson famously put it in Youngstown Sheet & Tube Co. v. Sawyer:
Just what our forefathers did envision, or would have envisioned had they
foreseen modern conditions, must be divined from materials almost as enigmatic
as the dreams Joseph was called upon to interpret for Pharaoh. A century and a
half of partisan debate and scholarly speculation yields no net result but only
supplies more or less apt quotations from respected sources on each side of any
question. They largely cancel each other. And court decisions are indecisive

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because of the judicial practice of dealing with the largest questions in the most
narrow way. 74
Regrettably, many in recent years seem to have lost sight of this great wisdom. Laura Kalman
has practically suggested that the best professional historians know better than to be originalists,
but that some constitutional lawyers and scholars who have taken the turn to history do not. 75
(4) Finally, we should put the following question to the broad originalists: If our
constitutional culture is so originalist, why do so many originalists complain that so many
precedents and so many features of our constitutional practice cannot be justified on the basis of
originalism? 76 The answer is that our constitutional culture is not as originalist as the broad
originalists have supposed. Or that its commitment to originalism is more honored in the breach
than in the observance. Or that Dworkin is right in arguing that [s]o far as American lawyers
and judges follow any coherent strategy of interpreting the Constitution at all, they already use
the moral reading, but that there is a confused mismatch between the role of the moral
reading, which is embedded in our constitutional practice, and its reputation, which is that it is
illegitimate. 77 As argued in Chapter 3, the reasons commonly given for the grip of originalism in
our constitutional culture are better understood as reasons for the grip of the aspiration to fidelity.
Those reasons in fact show the need for a moral reading or philosophic approach.
B. The Celebration of Fit to the Exclusion of Justification
Another reason why some liberal and progressive constitutional theorists resist the moral
reading and attempt to develop a broad originalism is that they believe that Dworkins theory
does not take history and fit seriously enough, or that it suffers from a problem of fit. 78 Their
objection has two aspects. In the first place, they claim, Dworkin does not do the concrete
groundwork necessary to show that his interpretations of the Constitution adequately fit the

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historical materials including original meaning and precedents. In the final analysis, they claim,
he too readily rejects as mistakes any historical materials that do not fit his political theory. For
both reasons, they are dubious about whether Dworkins theory, as he himself practiced it,
actually constrains constitutional interpretation to be faithful to anything other than his own
liberal political theory.
In response, I would distinguish between Dworkins theory of fidelity as integrity with
the moral reading and Dworkins own application of it, and urge: Do as Dworkin says, not as he
does. That is, I would argue that Dworkins theory is the best conception of fidelity, but would
concede that Dworkin himself may not always satisfactorily have done the fit work that his own
theory calls for, or that he may have done it too abstractly to satisfy these critics that he takes fit
as seriously as he should. Dworkins splendid essays in the New York Review of Books may have
aggravated such concerns. He wrote these essays in a style designed to reach and persuade a
larger audience of citizens, not in a technical style to demonstrate to constitutional lawyers and
scholars that he had done his historical homework. Ironically, to the extent that Dworkin indeed
became, in T.M. Scanlons estimation, our leading public philosopher, 79 he may have
diminished the appeal of his theory and his work to some constitutional lawyers and scholars.
For in their view, his public philosophy may not provide a good model for the kind of
scholarship that shows the proper regard for the aspiration to fidelity, and that gives fit as well as
justification its due.
Furthermore, some broad originalists evidently resist Dworkins moral reading because
they believe, as Ackerman once put it, that fit is everything. 80 To state the matter in terms of
Dworkins well-known argument that the best interpretation has two dimensionsfit and
justificationthey seem to believe that fidelity is purely a matter of fit with historical materials,

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rather than also a matter of justification in political theory. As observed in Chapter 1, fit and
history do have a role in the quest for fidelity to the Constitution, but a limited one. We should
acknowledge the place of history in constitutional interpretationas a resource or factor that
comes into play in the dimension of fitbut should keep it in its place. Broad originalists, like
narrow originalists, tend to exaggerate the place of history and to give it a greater role than it
deserves and than it is capable of playing.
History is, can only be, and should only be a starting point in constitutional interpretation.
It has a threshold role, which is often not dispositive. In the dimension of fit, history helps screen
out off-the-wall interpretations or purely utopian interpretations, but often does not lead
conclusively to any interpretation, let alone the best interpretation. History usually provides a
foothold for competing interpretations or theories. It alone cannot resolve the clash among these
interpretations or theories. Deciding which theory provides the best interpretation is not an
historical matter of reading more cases, tracts, or speeches or more scrupulously doing good
professional history. To resolve the clash among competing interpretations or theories, we must
move beyond the threshold dimension of fit to the dimension of justification. History rarely has
anything useful, much less dispositive, to say at that point. In deciding which among competing
acceptably fitting interpretations is most faithful to the Constitution, we must ask further
questions: Which interpretation provides the best justification, which makes our constitutional
scheme the best it can be, which does it more credit, or which answers better to our best
aspirations as a people? 81 These questions are not those of an infidel, Lessig notwithstanding. 82
They are required by the quest for fidelity in the sense of honoring our aspirational principles,
not merely following our historical practices or the concrete original meaning of the text. 83 And
the commitment to fidelity is an aspiration to the best interpretation of the Constitution, not

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merely to best fit with the historical materials. The view that fidelity is merely a matter of fitor
that fit is everythingmistakenly assumes that the Constitution is defined, and exhausted, by
the historical materials.
More generally, some broad originalists may resist the moral reading because they
believe that fidelity requires following historical materials and eschewing political theory. But
broad originalists like Ackerman and Balkin conceive original meaning at a relatively high level
of abstraction. 84 When they elaborate abstract original meaning, they will find that they are not
able to do so purely as a matter of historical research, translation, or extrapolation. Instead, they
will have to do so as a matter ofand through recourse tomaking normative judgments in
building out (Balkin) or hammering out (Ackerman) the best understanding of our
constitutional commitments. Ackerman and Balkin well understand this, despite believing that
the normative judgments are more historicist than Dworkin contemplates. I shall return to their
arguments in Chapters 6 and 7.
C. The Democratic Turn
A final reason why liberals and progressives have sought to develop a broad originalism
is that they believe it is more democratic than the moral reading. For example, Ackerman fears
that a Dworkinian moral reading involves court-centered government by We the Judges rather
than popular sovereignty by We the People. 85 And Balkin worries that a Dworkinian moral
reading reflects a court-centered constitutional catholicism rather than a more democratic
constitutional protestantism. 86 I shall not examine these reasons in detail here, but I should say
three things. First, as stated above, Dworkin has responded effectively to certain democratic
objections by showing that they rest upon the unfounded majoritarian premise. Second, the
argument that a broad originalism is more democratic than a moral reading ignores the fact that

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the broad originalists agree for the most part with Dworkin and similar proponents of the moral
reading (like me) about what basic liberties properly constrain the majoritarian political
processes; the disagreement is largely about how best to justify protecting those basic liberties
against majoritarian encroachment. To the extent that the broad originalists disagree with
proponents of the moral reading about what our basic liberties are, their claims that a broad
originalism is more democratic tend either to rest upon the majoritarian premise, or to beg the
question of what conception of democracy best fits and justifies our scheme. Finally, the broad
originalists claim that their theories are more democratic than the moral reading seems to
depend ultimately in part upon the view that their theories have better grounded those basic
liberties in our historical materials. To that extent, the democratic objection to the moral reading
shades over into a fidelist objection, which I have addressed.
IV. RECONCEIVING THE MORAL READING AS A BIG TENT
The upshot of my analysis of the reasons why the broad originalists have resisted the
moral reading in favor of trying to develop an intermediate theory is that we should conceive the
moral reading as a big tent that can encompass broad originalist conceptions such as those of
Ackerman, Balkin, and perhaps even that of Lessig. Broad originalists have employed the
argumentative strategy of using Bork and Scalia, on the one hand, and Dworkin, on the other, as
rhetorical foils or extremes against which to set up their arguments. 87 This strategy leads to the
unfortunate results of caricaturing Dworkins arguments and, worse yet, obscuring similarities
and common ground between the moral reading and broad originalism. Again, I would urge the
broad originalists to reconceive their projects as being in support of the moral reading, not as
offering alternatives to it. They can provide firmer grounding than Dworkin offered for the moral
reading in fit with historical materials. (I do not mean to suggest that their own moral readings

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are the same as Dworkins.) In Chapters 6 and 7, I shall recast Balkins and Ackermans theories
as moral readings. I shall close by giving three reasons for embracing the moral reading,
conceived as a big tent.
The first reason is hortatory: The moral reading exhorts judges, elected officials, and
citizens to reflect upon and deliberate about our deepest principles and highest aspirations as a
people. It does not conceive the commitment of fidelity to the Constitution as commanding us to
follow the authority of the past. In a word, it rejects the authoritarianism of originalism, narrow
or broad, as inappropriate and unjustifiable in a constitutional democracy. As Christopher L.
Eisgruber points out, it is ironic if not absurd that originalists would impose the dead hand of
the past upon us in the name of popular sovereignty. 88 The moral reading exhorts us to conceive
fidelity in terms of honoring our aspirational principles rather than merely following our
historical practices and concrete original meanings, which no doubt have fallen short of those
principles. On this view, fidelity is not subservient fealty.
The second, related reason is critical: The moral reading encourages, indeed requires, a
reflective, critical attitude toward our history and practices rather than enshrining them. It
recognizes that our principles may fit and justify most of our practices or precedents but that they
will criticize some of them for failing to live up to our constitutional commitments to principles
such as liberty and equality. Put another way, the moral reading does not confuse or conflate our
principles and traditions with our history, our aspirational principles with our historical
practices. 89 Again, it recognizes that fidelity to the Constitution requires honoring our
aspirational principles, not following our historical practices and concrete original meanings.
That is, fidelity to the Constitution requires that we disregard or criticize certain aspects of our
history and practices in order to be faithful to the principles embodied in the Constitution.

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The final reason is justificatory: The moral reading, because it understands that the quest
for fidelity in interpreting our imperfect Constitution exhorts us to interpret it so as to make it the
best it can be, offers hope that the Constitution may deserve our fidelity, or at least may be able
to earn it. Ironically, despite their pretensions to a monopoly on concern for fidelity, the
originalists would enshrine an imperfect Constitution that does not deserve our fidelity. 90
Thus, the moral reading frames questions of constitutional interpretation as matters of
principle, to be decided by reflection upon, and deliberation about, basic principles and
constitutional essentials, not mainly as matters of history that have largely been decided (at least
abstractly) for us by our forebears who are long dead and gone. It underwrites a constitutional
discourse that makes recourse to questions of principle themselves rather than primarily to other
peoples views on other subjects in other contexts. And the moral reading makes for a better
constitutional citizenry, not to mention better interpretations of the Constitution. It does not
reduce us to pouring over other peoples opinions concerning these questions, nor does it require
us to put our arguments in the mouths of people long dead and gone or to dress up our arguments
in their antiquated garb. In a word, it underwrites a deliberative citizenry, not an authoritarian
one.

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NOTES TO CHAPTER FOUR
1. These questions of What and How, along with the question of Who is to interpret?, are
the basic interrogatives of constitutional interpretation. See WALTER F. MURPHY, JAMES E.
FLEMING, SOTIRIOS A. BARBER, & STEPHEN MACEDO, AMERICAN CONSTITUTIONAL
INTERPRETATION 14-17 (5th ed. 2014).
2. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1977); RONALD DWORKIN,
FREEDOMS LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 1-38, 72-83 (1996);
RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (2010).
3. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
(1990); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
(Amy Gutmann ed., 1997); Antonin Scalia, Originalism: The Lesser Evil, 57 UNIVERSITY OF
CINCINNATI LAW REVIEW 849 (1989).
4. DWORKIN, FREEDOMS LAW, supra note 2, at 74-76; RONALD DWORKIN, LIFES DOMINION: AN
ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 125-29 (1993). I take
the term integrity from Dworkins conception of law as integrity. See RONALD DWORKIN,
LAWS EMPIRE 176-275 (1986).
5. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter FOUNDATIONS];
Bruce Ackerman, A Generation of Betrayal?, 65 FORDHAM LAW REVIEW 1519 (1997); Lawrence
Lessig, Fidelity and Constraint, 65 FORDHAM LAW REVIEW 1365 (1997); Lawrence Lessig,
Fidelity in Translation, 71 TEXAS LAW REVIEW 1165 (1993); Lawrence Lessig & Cass R.
Sunstein, The President and the Administration, 94 COLUMBIA LAW REVIEW 1 (1994); CASS R.
SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT (1996).

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6. See SUNSTEIN, LEGAL REASONING, supra note 5, at 171-82; Bruce Ackerman, Liberating
Abstraction, 59 UNIVERSITY OF CHICAGO LAW REVIEW 317 (1992).
7. For an example of Lessigs rejection of Dworkins moral reading, see Lessig, Fidelity in
Translation, supra note 5, at 1259-61. For an example of Sunsteins rejection of Dworkins
moral reading in favor of an alternative moral reading, see Cass R. Sunstein, Earl Warren Is
Dead, NEW REPUBLIC, May 13, 1996, at 35 (reviewing DWORKIN, FREEDOMS LAW, supra note
2). For Ackermans rejection of Dworkins rights foundationalism in favor of his own
conception of dualist democracy, see ACKERMAN, FOUNDATIONS, supra note 5, at 6-16. For
examples of interpretations of Ackermans work as an attempt to develop a broad form of
originalism, see Frank Michelman, Laws Republic, 97 YALE LAW JOURNAL 1493, 1521-23
(1988); Suzanna Sherry, The Ghost of Liberalism Past, 105 HARVARD LAW REVIEW 918, 933-34
(1992) (reviewing ACKERMAN, FOUNDATIONS, supra note 5).
8. Lessig & Sunstein, The President and the Administration, supra note 5, at 11 n.35, 85 n.336.
9. DWORKIN, FREEDOMS LAW, supra note 2, at 14, 18.
10. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 2, at 149.
11. SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE BASIC
QUESTIONS (2007). In this section, I incorporate a revised portion of pp. 155-70 of that book.
12. 163 U.S. 537 (1896).
13. 347 U.S. 483 (1954).
14. 163 U.S. at 544.
15. Id. at 551.
16. Id. at 560 (Harlan, J., dissenting).
17. Id. at 551.

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18. 505 U.S. 833, 862-64 (1992).

19. 347 U.S. 497, 500 (1954).
20. 106 U.S. 583 (1883).
21. 388 U.S. 1, 10 (1967).
22. Id. at 7, 11.
23. Id. at 12.
24. 83 U.S. 36, 81 (1872).
25. See Baker v. State, 170 Vt. 194, 228 (Vt. 1999) (justifying extending Common Benefits of
legal protections afforded to intimate human relationships to gay and lesbian couples on the basis
of their common humanity); Goodridge v. Department of Public Health, 440 Mass. 309, 323
(Mass. 2003) (likewise invoking a conception of common humanity in striking down a law
that did not extend the rights, responsibilities, and benefits of civil marriage to gay and lesbian
couples).
26. It should not come as a surprise, therefore, that intentionalists like Bork and McDowell tend
to conceive the philosophic approach this way. See BORK, TEMPTING OF AMERICA, supra note 3,
at 211; GARY MCDOWELL, THE CONSTITUTION AND CONTEMPORARY CONSTITUTIONAL THEORY
23, 29 (1986).
27. PLATO, THE APOLOGY OF SOCRATES, 21c-23c, 30d-31e.
28. See ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975).
29. PLATO, THE REPUBLIC, 457d-466d.
30. 262 U.S. 390, 401-02 (1923).

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31. Shortly after Brown, the Supreme Court itself delayed invalidating Virginias law prohibiting
interracial marriage. See Naim v. Naim, 197 Va. 734, 90 S.E.2d (Va. 1955), appeal dismissed,
350 U.S. 985 (1956).
32. 381 U.S. 479, 507-26 (1965) (Black, J., dissenting).
33. See LEARNED HAND, THE BILL OF RIGHTS 73 (1974) (For myself it would be most irksome
to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I
assuredly do not.); Cass R. Sunstein, Second-Order Perfectionism, 75 FORDHAM LAW REVIEW
2867, 2869 (2007) (claiming that judges are not capable of making the kinds of judgments called
for by first-order perfectionism or the philosophic approach and imagining a society proudly
called Olympus where such an approach would be entirely appropriate).
34. See BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 11, at 35-55, 11733.
35. See, e.g., the dissenting opinions in Slaughter-House itself; Walter F. Murphy, SlaughterHouse, Civil Rights, and Limits on Constitutional Change, 32 AMERICAN JOURNAL OF
JURISPRUDENCE 1 (1987).
36. See JOHN HART ELY, DEMOCRACY AND DISTRUST 34-41 (1980); RANDY E. BARNETT,
Introduction: James Madisons Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE:
THE HISTORY AND MEANING OF THE NINTH AMENDMENT 1 (Randy E. Barnett ed., 1989).
37. See Murphy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, supra
note 35. For the general idea of mistakes in constitutional interpretation, see DWORKIN,
TAKING RIGHTS SERIOUSLY, supra note 2, at 118-23.
38. DWORKIN, FREEDOMS LAW, supra note 2, at 15-18.

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39. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR
OF POLITICS 16,

18 (2d ed. 1986).

40. Similarly, Sunstein has suggested that Dworkin has stood Judge Learned Hand on his head.
See Sunstein, Earl Warren Is Dead, supra note 7, at 36.
41. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993); SUNSTEIN, LEGAL REASONING,
supra note 5.
42. Ronald Dworkin, The Forum of Principle, 56 NEW YORK UNIVERSITY LAW REVIEW 469
(1981), reprinted in RONALD DWORKIN, A MATTER OF PRINCIPLE 33 (1985).
43. RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? PRINCIPLES FOR A NEW POLITICAL
DEBATE 146 (2006).
44. Id. at 131. See also DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 2, at 382-85.
45. DWORKIN, IS DEMOCRACY POSSIBLE HERE?, supra note 43, at 134.
46. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 2, at 384.
47. DWORKIN, FREEDOMS LAW, supra note 2, at 24; DWORKIN, LIFES DOMINION, supra note 4,
at 123; DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 2, at 384-85.
48. DWORKIN, FREEDOMS LAW, supra note 2, at 24-26, 349 n.5; DWORKIN, IS DEMOCRACY
POSSIBLE HERE?, supra note 43, at 144, 146; DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 2,
at 384-85.
49. Sager makes a similar critique of the architecture of Dworkins theory. See LAWRENCE G.
SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 132-37
(2004).
50. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY 1960 (2006).

171

51. Id. at 61-85. I develop this theory by analogy to John Rawlss political constructivism. See
JOHN RAWLS, POLITICAL LIBERALISM (1993). I mean constitutional constructivism in two senses.
First, I intend a general methodological sense of constructivism, illustrated by Dworkins
conception of constitutional interpretation as constructing schemes of principles that best fit and
justify our constitutional document and underlying constitutional order as a whole. Dworkin
originally put forth this conception by analogy to Rawlss conception of justification in political
philosophy as a quest for reflective equilibrium. DWORKIN, TAKING RIGHTS SERIOUSLY, supra
note 2, at 159-68. Second, I intend a specific substantive sense of constructivism, exemplified by
Rawlss conception of the equal basic liberties in a constitutional democracy such as our own as
being grounded on a conception of citizens as free and equal persons, together with a conception
of society as a fair system of social cooperation.
52. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 50, at 78-79.
53. See id. at 79.
54. JAMES E. FLEMING & LINDA C. MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES,
AND VIRTUES

3-4 (2013).

55. DWORKIN, A MATTER OF PRINCIPLE, supra note 42, at 33.

56. DWORKIN, FREEDOMS LAW, supra note 2, at 31.
57. See SUNSTEIN, LEGAL REASONING, supra note 5, at 59-60; SUNSTEIN, PARTIAL
CONSTITUTION, supra note 41, at 9, 145-46, 374 n.35.
58. See ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 160, 170 (2014)
[hereinafter CIVIL RIGHTS REVOLUTION].
59. See DWORKIN, FREEDOMS LAW, supra note 2, at 31.

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60. Sanford Levinson, The Constitution in American Civil Religion, 1979 SUPREME COURT
REVIEW 123, 141 (interpreting Dworkin as a constitutional protestant on the question Who is
to interpret the Constitution?); see SANFORD LEVINSON, CONSTITUTIONAL FAITH 42-44 (1988).
Dworkin has also referred to his approach on this question as a protestant approach. See
DWORKIN, LAWS EMPIRE, supra note 4, at 190, 413.
61. See, e.g., Henry P. Monaghan, Our Perfect Constitution, 56 NEW YORK UNIVERSITY LAW
REVIEW 353 (1981). This section draws from my analysis in FLEMING, SECURING
CONSTITUTIONAL DEMOCRACY, supra note 50, at 212-15.
62. See DWORKIN, FREEDOMS LAW, supra note 2, at 10-11; DWORKIN, LAWS EMPIRE, supra
note 4, at 238-75.
63. See DWORKIN, FREEDOMS LAW, supra note 2, at 36 (citing Frank I. Michelman, Foreword:
On Protecting the Poor Through the Fourteenth Amendment, 83 HARVARD LAW REVIEW 7
(1969)).
64. See SAGER, JUSTICE IN PLAINCLOTHES, supra note 49, at 84-128.
65. DWORKIN, FREEDOMS LAW, supra note 2, at 73.
66. SAGER, JUSTICE IN PLAINCLOTHES, supra note 49, at 129-60; see also Lawrence G. Sager, The
Why of Constitutional Essentials, 72 FORDHAM LAW REVIEW 1421, 1423-29 (2004) (using
concentric circles to illustrate these four domains).
67. See LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 132-63 (1996).
68. For examples of accounts of inferences from structure that recognize this, see CHARLES L.
BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969); WILLIAM F.
HARRIS, II, THE INTERPRETABLE CONSTITUTION 144-58 (1993); FLEMING, SECURING

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CONSTITUTIONAL DEMOCRACY, supra note 50, at 90-91 (furthering the unfinished business of
Charles Black).
69. Notwithstanding possible appearances to the contrary, Texas v. Johnson, 491 U.S. 397
(1989), and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), are not counterexamples. For
instructive analyses of Scalias jurisprudence, as manifested in such decisions, see MARK
TUSHNET, A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL
LAW (2005).
70. See, e.g., LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 17, 8187 (1991); LAWRENCE H. TRIBE, THE INVISIBLE CONSTITUTION (2008); Laurence H. Tribe,
Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional
Interpretation, 108 HARVARD LAW REVIEW 1223 (1995) (criticizing the (broad originalist)
theories of Ackerman and Amar). For a critique of the broad originalist theories of Ackerman
and Lessig from a theoretical perspective similar to Tribes, see Michael C. Dorf, Integrating
Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85
GEORGETOWN LAW JOURNAL 1765 (1997).
71. The Senates rejection of the Bork nomination was at least in part a rejection of Borks
narrow originalism. See DWORKIN, FREEDOMS LAW, supra note 2, at 276-86, 287-305.
72. William W. Crosskey may be an exception, but he was roundly criticized as exceptional. See,
e.g., Henry M. Hart, Jr., Professor Crosskey and Judicial Review, 67 HARVARD LAW REVIEW
1456 (1954) (reviewing William W. Crosskey, Politics and the Constitution in the History of the
United States (1953)).
73. See Jacobus tenBroek, Admissibility and Use by the United States Supreme Court of Extrinsic
Aids in Constitutional Construction, 26 CALIFORNIA LAW REVIEW 287 (1938); CHARLES A.

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MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969); John G. Wofford, The
Blinding Light: The Uses of History in Constitutional Interpretation, 31 UNIVERSITY OF
CHICAGO LAW REVIEW 502 (1964).
74. 343 U.S. 579, 634-35 (1952) (Jackson, J., concurring).
75. KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM , supra note 67, at 167-90.
76. See BORK, TEMPTING OF AMERICA, supra note 3. For a highly instructive analysis of the gap
between originalist theory and our constitutional practice, see Dorf, Integrating Normative and
Descriptive Constitutional Theory, supra note 70.
77. DWORKIN, FREEDOMS LAW, supra note 2, at 2, 4.
78. For a positivist claim that Dworkins theory suffers from a problem of fit, see Anthony J.
Sebok, The Insatiable Constitution, 70 SOUTHERN CALIFORNIA LAW REVIEW 417 (1997). For an
originalist critique along these lines, see Michael W. McConnell, The Importance of Humility in
Judicial Review: A Comment on Ronald Dworkins Moral Reading of the Constitution, 65
FORDHAM LAW REVIEW 1269 (1997).
79. T.M. Scanlon, Partisan for Life, NEW YORK REVIEW OF BOOKS, July 15, 1993, at 45, 45
(reviewing DWORKIN, LIFES DOMINION, supra note 4).
80. See Bruce Ackerman, Remarks at the New York University School of Law Colloquium on
Constitutional Theory, Nov. 16, 1993 (colloquy between Ackerman and Dworkin).
81. See DWORKIN, FREEDOMS LAW, supra note 2, at 8-11; DWORKIN, LAWS EMPIRE, supra note
4, at 176-275.
82. Lessig, Fidelity in Translation, supra note 5, at 1260.

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83. For the idea that the Constitution embodies aspirational principles rather than merely
codifying historical practices, see FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra
note 50, at 112-16.
84. See SUNSTEIN, LEGAL REASONING, supra note 5, at 171-82; Ackerman, Liberating
Abstraction, supra note 6.
85. See ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 58, at 160, 170.
86. See JACK M. BALKIN, LIVING ORIGINALISM 328, 329 n.12 (2011).
87. Compare ACKERMAN, FOUNDATIONS, supra note 5, at 10-16 (criticizing Dworkin) with
Bruce Ackerman, Robert Borks Grand Inquisition, 99 YALE LAW JOURNAL 1419 (1990)
(reviewing and criticizing BORK, TEMPTING OF AMERICA, supra note 3); compare SUNSTEIN,
LEGAL REASONING, supra note 5, at 48-53 (criticizing Dworkin) with SUNSTEIN, PARTIAL
CONSTITUTION, supra note 41, at 96-110 (criticizing Bork); see also Lessig, Fidelity in
Translation, supra note 5, at 1260 (From the perspective of the two-step fidelist, both the
originalist [such as Scalia] and the Dworkinian are infidels.).
88. Christopher L. Eisgruber, The Living Hand of the Past: History and Constitutional Justice,
65 FORDHAM LAW REVIEW 1611, 1613-17 (1997). See also CHRISTOPHER L. EISGRUBER,
CONSTITUTIONAL SELF-GOVERNMENT (2001).
89. See FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 50, at 6, 112-16.
90. Originalism, as an ism, has no firm footing in our constitutional culture, and it has no place
there. It is a species of authoritarianism that is antithetical to a free and equal citizenry. A regime
of purportedly dispositive original meanings is, at best, beside the point of constitutional
interpretation and, at worst, an authoritarian regime that is unfit to rule a free and equal people.

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For a similar view, see Samuel Freeman, Original Meaning, Democratic Interpretation, and the
Constitution, 21 PHILOSOPHY & PUBLIC AFFAIRS 3 (1992).

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CHAPTER FIVE
The Place of Precedent and Common Law Constitutional Interpretation in a Moral
Reading or Philosophic Approach
There is...a peculiar logical pleasure in making manifest the continuity between
what we are doing and what has been done before. But the present has a right to
govern itself so far as it can; and it ought always to be remembered that historic
continuity with the past is not a duty, it is only a necessity.
Oliver Wendell Holmes, Jr.1
Under a moral reading or philosophic approach, the best interpretation of the Constitution
should fit and justify the legal materials, including the text, original meaning, and precedents. 2 In
Against Obligation, Abner Greene provocatively and creatively bucks the tendencies of
constitutional theorists to profess fidelity with the past in constitutional interpretation. 3 He
rejects originalist understandings of obligation to follow original meaning in interpreting the
Constitution, even of the sort associated with Jack Balkins abstract living originalism (which
aspires to fidelity to the abstract commitments of, rather than the concrete expectations of, the
founding generation). 4 And he rejects interpretive obligation to follow precedent, even of the
type illustrated by David Strausss flexible living constitutionalism (which elaborates the
meaning of our abstract commitments through common law constitutional interpretation). 5
Greene provides powerful arguments against views that original meaning and precedent are
dispositive of constitutional meaning and decision. He argues that we the people today should
decide questions of constitutional meaning, commitment, and justice for ourselves, by our own
best lights.
In this chapter, I shall examine the place of precedent, common law constitutional

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interpretation, and doctrinal frameworks under a moral reading or philosophic approach. In Part
I, I focus on Greenes arguments against interpretive obligation to the past, in particular, his
argument that even moral readers like Dworkin and me give too much deference or weight to
fit and precedent, and not enough primacy to justification and justice, in constitutional
interpretation. 6 I argue that precedents are a resource or factor in constitutional interpretation, but
that there is no strong obligation to follow precedents as such. In Part II, I elaborate an account
of common law constitutional interpretation, drawing upon and recasting Strausss conception of
the living constitution as a moral reading. Finally, in Part III, I explore the role of doctrinal
frameworks, arguing that they cannot displace or avoid normative judgments about the best
understandings of our constitutional commitments. In particular, I interpret Justice Stevenss
famous argumentcomplex doctrinal frameworks notwithstanding, that There is only one
Equal Protection Clauseas a call for a moral reading or philosophic approach.
I. AGAINST INTERPRETIVE OBLIGATION TO FOLLOW THE PAST
Again, Greene argues against interpretative obligation to the past, whether to concrete
original meaning or precedents (as he puts it, whether to higher or prior authorities). He
makes cogent arguments against originalism as conventionally understood. His arguments zero
in on originalists assumptions or claims that we are obligated to follow the original
understanding or original meaning, concretely conceived as the original expected applications of
the framers and ratifiers. His arguments also target originalists aims or claims to avoid making
moral and philosophic choices in constitutional interpretation. Such choices, he rightly argues,
are inevitable and indeed desirable. In a nutshell, he shows that originalists unsuccessfully
attempt to stress fit to the exclusion of justification. 7
At the same time, Greene criticizes moral readers like Dworkin and me for conceiving

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constitutional interpretation as being too constrained by fitin particular, by interpretive
obligation to follow precedents. It seems that, to Greene, Dworkin and I do not fully
acknowledge the primacy of justification over fit. I should say emphatically that I welcome this
criticism! As discussed in Chapter 4, moral readers like Dworkin are usually criticized for giving
too little room for fit, and too much primacy to justification. 8 Since we are being criticized from
both sides, I guess we must be doing something right!
I shall sketch the predicament of moral readers like Dworkin and me. In general, no one
doubts our commitment to the normative dimension of justification in constitutional
interpretation. After all, we argue that constitutional interpretation is a matter of making moral
and philosophical judgments about the meanings and implications of our constitutional
commitments. The challenge we face (as discussed in Chapter 4) is to show that we are not just
elaborating our own liberal commitments for a perfect liberal Constitution.9 We make three basic
responses to these perfect Constitution challenges. First, we argue that it is in the nature of
constitutional interpretation to strive to interpret the Constitution so as to make it the best it can
be. 10 Second, we show that we do not believe that the Constitution, even when construed in its
best light, is perfect. For example, Dworkin conceded that the Constitution does not protect
welfare rights (rights which his ideal liberal Constitution would protect). 11 He was deeply critical
of the state of our constitutional practice, to the point of asking, to invoke the title of his book,
Is Democracy Possible Here? 12 Similarly, as noted below in Chapter 7, I acknowledge all
manner of constitutional evil, misfortune, stupidity, and tragedy in our constitutional practice. 13
Third, we argue that our liberal constitutional theories fit the constitutional document and
scheme. They have a firm footing in our extant constitutional practice and they are not just
normative theories that would justify a perfect liberal Constitution.14

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Enter my first book, Securing Constitutional Democracy, which Greene criticizes for
giving primacy to fit over justification. Officially, Dworkins moral reading aspires to construct a
theory that best fits and justifies our constitutional document, order, and practice. Yet many
critics believe that Dworkin (to use Greenes terms) has given primacy to justification and not
enough room for fit. 15 They claim that he has elaborated a perfect liberal constitution but has
not done the concrete groundwork necessary to show that his interpretations of the Constitution
adequately fit our practice, including original meaning and precedents. As stated in Chapter 4, in
response, I say, Do as Dworkin says, not as he does. That is, even if Dworkin himself may not
always have done the fit work that his own theory calls for, I do take fit seriously. I seek to
remedy the deficiency of his work by making the fit case for a liberal theory of securing
constitutional democracy that protects not only procedural liberties associated with deliberative
democracy, like the right to vote, but also substantive liberties associated with deliberative
autonomy, like the right to marry. Instead of simply making a normative argument that justice
requires protecting a right to autonomy, I undertake an archeological excavation of the legal
materials of our constitutional practice and culture, specifically the line of substantive due
process cases protecting certain basic liberties associated with privacy or autonomy. I ask, what
constitutional theory would best fit and justify these cases? I argue that my constitutional
constructivism better fits and justifies these cases than do competing theories of originalism
(Justice Scalias view) or perfecting the processes of representative democracy or deliberative
democracy (Elys and Sunsteins views). 16 Yet my taking this fit tackdoing as Dworkin
says, not as he doesis evidently what has prompted Greenes criticism that I give too much
deference to fit and precedent and fail to give primacy to justification.
I make three arguments in this section. First, I argue that a commitment to fit does not

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necessitate commitment to the view that one has an interpretive obligation to follow the past
whether concrete original meaning or precedents. In short, taking fit seriously interpretive
obligation to follow the past. Nevertheless, fit may figure prominently in a sound account of the
aspiration to fidelity in interpreting the Constitution.
Second, I argue that interpreters who aspire to fidelity in constitutional interpretation
have a responsibility to construct an account that not only justifies but also fits our constitutional
document, order, and practice. But the aspiration to fidelity itself does not entail an interpretive
obligation to follow the past. In short, taking fidelity seriously interpretive obligation to the
past. In this section, I will comment in more detail on fidelity without obligation and without
originalism, sketching an account of fidelity in pursuit of our aspirations.
Third, I argue that fit and justification are co-original and of equal weight, instead of
justification having primacy over while also leaving room for fit. Here I shall say more
about fit in relation to justification and fidelity in constitutional interpretation.
A. Taking Fit Seriously Interpretive Obligation to Follow the Past
Do Dworkins and my commitment to taking fit as well as justification seriously entail a
commitment to interpretive obligation to follow the past, whether concrete original meaning or
precedent? In making the fit case for my theory, I present precedents in the line of substantive
due process decisions as bones or shards of a constitutional culture: as provisional fixed points
that a constitutional constructivist archaeologist or interpreter has a responsibility to fit and
justify. 17 I argue that a constructivist interpreter would not be free to cast out the substantive
shards and bones in the way that an originalist or process-perfecter would. This is not to say that
judges, much less citizens, have an obligation to follow the past. Rather, it is to say that our
pictures of our constitutional practice will be more recognizableand be better accountsif we

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can work up an account that fits and justifies the durable lines of doctrine.
I do not offer a theory of precedent or stare decisis as such, nor do I justify following
precedent for any of the reasons people commonly offer to justify this practicelike stability,
reliance, and settlementreasons that Greene considers and rejects as inadequate. 18 As a matter
of fact, I do not believe that anyone has a strong sense of obligation to follow precedent as such
in constitutional interpretation.
Fidelity to our imperfect Constitution, I would argueand thanks to Greene I now see
this more clearlyentails rejecting any obligation to follow concrete original meaning or
precedent. If our Constitution were conceived merely as consisting of original expected
applications or precedents, it would not deserve our fidelity. The Constitution, to be worthy of
our fidelity, must reflect our aspirations to realize the ends proclaimed in the Preamble. For it to
do that, we must reject any idea of an obligation to follow original expected applications or
precedents as such. Fidelity to our imperfect Constitution entails fidelity in pursuit of our
constitutional aspirations and ends. The quest for fidelity aims to redeem the promise of our
commitments to abstract aspirational principles, not to preserve and follow our concrete
historical practices.
What is more, I do not see fit as I practice it as imposing an obligation to follow the past
in a way that Greene would find objectionable. As discussed in Chapter 4, the dimension of fit
basically does two things. One, it screens out purely utopian interpretations that have no claim on
us by insisting upon showing the footing of the interpretation in our constitutional practice.
Hence, if we are constructing a moral reading or applying a philosophic approach, we give room
for fit to show that the interpretation is an interpretation of our constitutional practice, not that of
a perfectly just Constitution. Two, fit screens out off-the-wall interpretations (which are not

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necessarily utopian). Indeed, fit indicates that the proffered interpretation has a footing in our
practice.
Furthermore, if one conceives constitutional interpretation and justification as
constructivist, as I do, one sees our principles as manifested in and growing out of our
constitutional commitments and practice, not abstract ideas of what justice requires. 19 Within
constructivism, one sees the dimension of fit as bound up with the dimension of justification: we
are trying to work up the best justification for the extant materials of our constitutional practice.
In response to Greenes argument that Dworkin and I give too much deference or weight
to precedent, I should clarify my views about the place of precedent in constitutional
interpretation and on common law constitutional interpretation in relation to a moral reading or
philosophic approach. I would say that, if one thinks of precedents as good-faith efforts to work
out the best understanding of our constitutional commitments, one should give them some weight
and approach them with some humility. I hasten to add that, to accept this approach, one need
not and should not go whole hog to Burkeanism. Greene aptly criticizes Burkean justifications
for following precedent as such. 20
Ironically, moral readers and common law constitutionalists may give more weight to
precedent than do originalists. For one thing, originalists officially give greater weight to
concrete original meaning and are dubious about precedents they see as inconsistent with such
meaning. 21 Indeed, some originalists like Gary Lawson reject precedent altogether. Others, like
Justice Scalia, make a pragmatic exception to originalism to accommodate precedent. 22 By
contrast, moral readers and living constitutionalists (more precisely, common law
constitutionalists like Strauss) conceive the Constitution as a frame of government and scheme of
abstract powers and rights the meaning of which we must elaborate or build out over time. They

184
deny that the framers and ratifiers resolved our problems for us. Accordingly, they may give
greater weight to interpreters good-faith efforts to work out the frame or scheme over time. I say
ironically because living constitutionalists are thought to emphasize flexibility and change and
argue against being tied down by the past. Yet they may be more tied down by precedent than
originalists are. This is so in part because they conceive precedents as part of the constitutional
practiceor, as Ackerman would say, the constitutional canon 23that we are trying to carry on
in a principled, coherent way.
In my observation, though, no one, or hardly anyone, believes that we have a strong
obligation to follow precedents as such. And this is as it should be. At any given time, a body of
law will be riven by competing substantive ideals and competing approaches to interpretation.
Proponents and opponents of a given view will win some cases and lose others. The conflicting
views are embodied in the cases as they develop. And so, one cannot operate under a strong
obligation to follow precedents as such and still make coherent, defensible decisions. Some
scholars who disparage bodies of case law as a messas if the judges do not understand the
problems or do not appreciate the tensions among the precedentsevidently do not see this.
Furthermore, as Sotirios Barber and I have argued, we cannot make recourse to precedent
to avoid making moral and philosophic choices in constitutional interpretation. 24 Instead, we use
precedent and argument concerning its implications as a site on which to do battle over and
choose among competing views. Thus, precedent is a site or battleground for making moral and
philosophic choices. The precedents themselves do not settle the questions and make the choices
for us. I shall return to this matter in discussing Justice Stevenss moral reading of the Equal
Protection Clause.
I do not consider it a weakness of precedent that people are willing to disregard it when

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they believe a previous case was wrongly decided, instead of adhere to it. Or, more likely, they
argue that the precedent in its implications supports what they think is the best interpretation and
the best moral and philosophic choice in the case before them. That is the strength of precedent!
We argue about and from precedents, not because we have an obligation to follow them or
because they decide our cases for us; instead, we do so to elaborate the meaning and best
understanding of our constitutional commitments. We ask whether the precedent was rightly
decided because we are striving to make our constitutional commitments the best they can be.
Precedents inform our judgment, and they provide evidence of the best understanding of our
commitments, but they do not themselves make those judgments for us. We have to make those
judgments ourselves: that is why we cannot and do not simply stand as decided.
B. Taking Fidelity Seriously Interpretive Obligation to the Past
The aspiration to fidelity, I argued in Chapter 3, raises two fundamental questions:
Fidelity to what? and What is fidelity? Lets begin with the question, Fidelity to what? My
answer is fidelity to our abstract constitutional aspirations, including ends, principles, and basic
liberties. Fidelity to our aspirations does not entail an obligation to follow the past in the sense of
either concrete original meaning or precedents. That would enshrine an imperfect Constitution
that falls short of our aspirations and does not deserve our fidelity. We should treat precedents as
evidence, factors, or resources, but not as obligations. They are to be taken into account, but
followed only to the extent that they accord with our best understanding of our aspirations.
Next, lets consider the other question, What is fidelity? It is not fealty, or subservience. It
is not following the authority of the past in the manner of an authoritarian originalism.
Furthermore, it is not obligation to the concrete past, whether original meaning or precedents.
Rather, fidelity is honoring our aspirations and pursuing our commitments by furthering our best

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understandings of them. The concrete original meaning and precedents are evidence of goodfaith efforts to pursue those aspirations, but they are not the aspirations themselves. They have
no doubt fallen short of our aspirations. If following those sources from the past dishonors our
aspirations and undermines our commitments, we have good reasons to reject them in order to
pursue our aspirations and commitments.
Moreoverto return to the question, Fidelity to what?we should aspire to fidelity to
our scheme as an ongoing frame of government pursuing the ends of the Preamble, not as a set of
concrete original meanings or a string of precedents. Again, I do not say that we have an
obligation to follow the concrete past, though I do say that we aspire to fidelity to the
Constitution. How can we honor fidelity while rejecting obligation to the concrete past?
To recall the argument from Chapter 3, if we conceive the Constitution as a frame of
government, to be lived under and worked out over time, we can approach it with an attitude of
fidelity but without an obligation of obedience to concrete expected applications or precedents.
Fidelity on this understanding entails a commitment to making the frame of government work, to
learning from experience, and to interpreting the Constitution so as to further its ends and to
realize its aspirations.
Fidelity? Yes. Commitment? Yes. Obligation or obedience in an authoritarian sense to
original expected applications or precedents? No. Fidelity is not obedience to decisions already
made for us in the past by people who are long dead and who were ignorant of the challenges
and problems of our age. Fidelity, rather, is an attitude of commitment to making the scheme
work and to further developing itbuilding it out over time, as Balkin puts it 25the better to
realize its ends and our aspirations. Or, as Dworkin and I put it, to making the Constitution the
best it can be. 26

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C. Fit and Justification in Constitutional Interpretation
Finally, I shall assess Greenes formulations about the primacy of justification and
room for fit. Greene argues against interpretive obligation to follow the past, but he allows
room for fit. 27 He acknowledges that in particular cases there can be good reasons for
following past decisions. As Balkin puts it, evidence of concrete original meanings and
precedents serve as a resource, not a constraint, in constitutional interpretation. 28 Similarly,
Greene says that they serve as a factor, not an obligation. 29
I agree completely with Greenes conception of room for fit. Yet he says that people
like Dworkin and me want to treat fit as more than a factor. 30 If I appear to do so, I suspect that it
is simply because I have attempted to provide a corrective to Dworkins workto do as he
says, not as he does.
I would resist framing the issue in terms of whether fit or justification has primacy. Both
dimensions enter into interpretation, and they are intertwined. There is no raw or bare fit that is
prior to or apart from justification, nor is there any justification divorced from fit that has any
purchase on us. What is more, I do not believe that Greene has made the case for the primacy of
justification over fit. He has, admittedly, made the case for the unavoidability of justification as
well as fit, and the inextricable connection between them. I would argue instead that fit and
justification are co-original and of equal weight. 31 Both are inherently involved in constitutional
interpretation. Both stem from the basic aim of developing the best interpretation.
In places, Dworkin almost seems to regret drawing the distinction between the two
dimensions of fit and justification. 32 Doing so is important for analytical clarity, but it may lead
people to see the two dimensions as more distinct than they are, as if they correspond to a twostep process. And it may lead them to view the two dimensions as sequential rather than as

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dimensions of a holistic judgment: as in, first we do fit and then we do justification. 33 And it may
lead them to argue that one or the other is primary. For example, they might argue that fit is
everything, to the exclusion of justification. 34 Or, even if fit is not everything, that fit has
primacy over justification. Or, to the contrary, that justification has primacy over fit. This is what
Greene argues. 35
In Securing Constitutional Democracy, I spoke of the best interpretation as that which
provides the best fit with and justification of the constitutional document, order, and practice. 36
Thus, I purposely avoided splitting up these two dimensions. I do make a fit case for my theory
of securing constitutional democracy. But I also make the case that my theory justifies our
constitutional document, order, and practice.
In writing the book, Constitutional Interpretation: The Basic Questions (with Barber)
which fully develops the philosophic approach summarized in Chapter 4I initially wanted to
refer to the two dimensions of fit and justification, but Barber insisted that we avoid this
distinction. For him, interpretation is just a matter of giving the best account of honoring
constitutional commitments and furthering constitutional ends. I have come to see the wisdom of
this view of fit and justification as inextricably bound together in the idea of giving the best
account.
At the same time, I should emphasize that there is analytical power and clarity in
distinguishing fit and justification and acknowledge that I myself have distinguished the two in
my own work. 37 As against those who argue that fit is everything, I argue in Chapters 1 and 6
that fit with historical materials alone is insufficient to resolve the clash among competing
interpretations in hard cases. We have to resort to justification to do so. As stated above, my
taking fit seriously shows that my moral readings have a firm footing in our constitutional

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practice. Furthermore, fit enables people to see their aspirations in the Constitution. Finally, fit
enables us to criticize others views as revisionist, radical, or subversive. For example, I can
criticize the Tea Party as revisionist, radical, and subversive because they cannot even fit much
of our Twenty-First Century constitutional practice, especially that concerning the scope of
federal powers. To be sure, I can also criticize them on normative grounds of justification: they
have a deficient, unjust normative theory, one moreover that falls short of or misses the mark on
our aspirations in the Preamble to the Constitution.
To recapitulate: if I seem to give primacy to fit over justification, it is because I strive to
show that my theorythough a Constitution-perfecting theoryis a theory of our constitutional
order, not one of a perfect liberal Constitution. Like Greene, I view fit with original meaning and
precedent as a resource for deciding constitutional meaning, as a factor in making constitutional
decisions, and as evidence of the content of our commitments. Even though interpreters do not
have an obligation to follow the past, they may be more effective in persuading people that their
interpretations are faithful to the Constitutions aspirations if they can make an argument that
their interpretation both fits with and justifies the constitutional document, underlying
constitutional order, and evolved constitutional practice.
Finally, I would like to make an observation concerning Michael Seidmans evident
view, in his book On Constitutional Disobedience, related to fit and justification. If Greene
would give primacy to justification over fit, it seems that Seidman would throw out fit altogether
and the Constitution along with it. As he titled an op-ed piece in the New York Times: Lets
[g]ive up on the Constitution. 38 Evidently that would leave only normative argument about the
best thing to do. It is not clear to me that normative arguments without regard to fit with the
extant constitutional document, doctrine, and practice will be superior to our current forms of

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argument. Normative arguments tend to be more persuasive to people when they are cast in
terms of realizing our commitments and aspirations than when they are cast simply as arguments
for an ideal state of affairs. Similarly, I believe that, to a greater degree than is commonly
appreciated, normative argument, at least in our political and constitutional culture, is more
constructivist than utopian. It articulates the ideals implicit in our practices. Seidman might say
this is a bad thingthat it shows the degree to which the Constitution has constricted our
thinking about justice and other good things. But I believe that our thinking about justice is
enriched through constructivism, as compared with what it would be like if we did away with
the Constitution or simply asked ourselves what justice requires as a utopian matter.
Constitutional arguments that fit and justify our constitutional document and practice exert a
greater claim on people than do utopian arguments: for the former are arguments about the best
understanding of our practices, commitments, and aspirations.
But this is not to say that in keeping the Constitution, instead of doing away with it, we
are saying we have an interpretive obligation to follow the past. Similarly, we are not engaging
in constitutional disobedience if we reject concrete original meaning or precedents in order to
further the aspirations of the Preamble and to realize the abstract aspirational principles that best
fit and justify our constitutional practice. To the contrary, I would argue that by doing so we are
pursuing constitutional fidelity!
In the passage quoted in the epigraph with which I began this chapter, Holmes famously
wrote that historic continuity with the past is not a duty, it is only a necessity. I suppose that
Holmes meant that somehow there is no avoiding following the past. I do not endorse Holmess
evidently deterministic view. I, like Greene, would agree with Holmes that following the past is
not a duty. Unlike Holmes, however, I would say that it is a necessity in the weaker sense that, to

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be persuasive in our constitutional culture, one generally needs to argue that ones interpretations
fit with the past, show the past in its best light (as Dworkin and I put it), or redeem the promises
of our abstract moral commitments and aspirations (as Balkin puts it 39). This is not originalism.
It is a moral reading or philosophic approach that aspires to fidelity to our imperfect
Constitution.
II. THE PLACE OF COMMON LAW CONSTITUTIONAL INTERPRETATION
Under a moral reading or philosophic approach, we strive to work out the best
understandings of our constitutional commitments over time, through common law constitutional
interpretation. Strauss, the most prominent contemporary champion of common law
constitutional interpretation, frames it as the most cogent form of living constitutionalism over
and against originalism. In putting forward my own account, I shall recast his formulation as a
moral reading. Whether or not Strauss would accept my recasting is less important than whether
my account of common law constitutional interpretation illuminates a moral reading or
philosophic approach.
Strauss opens his book, The Living Constitution, by taking up the challenge in Justice
Scalias maxim of electoral politics: that you cant beat somebody with nobody. He defends a
well-grounded competitor to originalism, an approach derived from the common law and based
on precedent and tradition. 40 And he argues that his theory of common law constitutional
interpretation is superior to originalism in every important respect. I find his arguments
persuasive, but I shall propose four friendly amendments. All four cohere around the idea that
Strauss should frame his theory of common law constitutional interpretation as a moral reading
of the Constitution.

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A. Originalism and Its Sins
Chapter One of Strausss book (Originalism and Its Sins) like his book as a whole,
presents thoroughgoing criticisms of originalism. His three main criticisms of conventional
originalism are: the problem of amateur history; the problem of translation; and Jeffersons
problemthe earth belongs...to the living and therefore the dead hand of the past should not
control the living. 41
These criticisms are convincing. But I would add a more fundamental criticism that better
supports a common law approach as a moral reading: originalism misconceives the very
character of the Constitution and of constitutional interpretation. The Constitution is a
framework or scheme of abstract aspirational principles and ends, not a code of detailed
historical rules. Accordingly, interpretation of our constitutional commitments requires
judgments of moral and political theory about how those principles and ends are best understood
and realized. From this standpoint, we can see that originalism revises our great outline of
majestic generalities into a prolix code of specific rules and terms of art. These formulations,
which come straight out of Chief Justice John Marshalls opinion in McCulloch v. Maryland 42
and Justice Robert Jacksons opinion in West Virginia v. Barnette 43canonical expressions of
living constitutionalismmay sound congenial to Strausss approach. I think they ultimately are,
but I have two concerns about the way Strauss puts his arguments.
One, Strauss describes common law constitutional interpretation as an evolving process
of developing precedent and tradition, coupled with judgments of fairness and good policy. 44 So
far so good. But some of his formulations make it sound like judges engaged in this process
make judgments of fairness and good policy as if they were simply making pragmatic judgments
rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate

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the abstract moral and political principles to which the Constitution commits us. Or judgments
about how best to realize our aspirational principles. He acknowledges this point elsewhere in
the book, for example, where he speaks of common law courts as relying on general principles
derived from precedents and on its judgments about good policy. Likewise, he refers to a
living constitution that exists apart from the text and the original understandingsthat exists in,
for example, the principles that protect freedom of expression and those of Brown v. Board of
Education. 45 In short, we should conceive the Constitution as a framework or scheme of
abstract aspirational principles that we elaborate through common law constitutional
interpretation.
Two, I fear Strauss disparages abstract principles more than he should and more than is
good for him. He does so when he criticizes moderate originalism as distinguished from
conventional varieties of strong or narrow originalism. Moderate originalism, as he presents it,
changes the level of generality at which the original understandings are described. In
particular, moderate originalists conceive the relevant original understandings or meanings at
the level of principle rather than specific outcomes or applications. Yes indeed. The broad
originalists discussed in Chapter 4 of this book are moderate originalists in this sense. Strauss
objects:
The problem with this kind of moderate originalism is that it can justify anything.
Once we say that we are bound only by the principle, rather than by the specific
outcomes, that the founders envisioned, we can always make the principle
abstract enough to justify any result we want to reach. 46
I would expect Justice Scalia, but not Strauss, to say this about moderate or broad originalism.
Strauss instead should welcome these moderate originalists with their abstract principles into the

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camp of common law constitutional interpretation. He should argue that the common law
approach elaborates the meaning of these abstract principles. Instead of suggesting that abstract
principles do not constrain constitutional interpretation, he should argue that the constraints are
those of the common law approach. In short, Strauss should reconstruct common law
constitutional interpretation along the lines of a moral reading of the Constitution.
B. The Common Law
In Chapter Two (The Common Law) Strauss makes four arguments for the common
law approach over originalism: it is more workable; it is more justifiable; it is what we actually
do; and it is more candid. 47 These arguments are persuasive. But Strauss leaves out an important
feature of common law constitutional interpretation which, if incorporated, would make his
account more compelling. Lord Mansfield famously argued that the common law . . . works
itself pure by rules drawn from the fountain of justice. 48 I interpret this idea to mean that, as the
common law evolves, it works toward greater coherence, unity, and justiceor, to use
Dworkins and my terms, greater integrity and perfection. 49 Applied to constitutional law, this
idea entails, in Dworkins famous formulation, that we should strive to interpret the Constitution
so as to make it the best it can be. I have applied this idea in developing a Constitution-perfecting
theory of constitutional interpretation. 50 Or, Mansfields idea entails, in Balkins formulation,
that we should interpret the Constitution so as to redeem our faith in it or to redeem its promises
of justice. 51 Maybe this idea of the common law working itself pure is implicit in Strausss book,
in particular, in his analysis of the development of freedom of speech doctrine and equal
protection doctrine. 52 I would make this idea more explicit. Doing so would bring out the sense
in which his common law constitutional interpretation is a moral reading of the Constitution. It is
not just a matter of making unbounded judgments of fairness and good policy.

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C. The Role of the Written Constitution: Common Ground and Jeffersons Problem
Strauss turns in Chapter Five to offer an account of the role of the written Constitution in
the common law approach. He argues that the written Constitution provides common ground
for settling disputes and that his common law approach has a better response to Jeffersons
problemthat the earth belongs...to the livingthan does originalism. 53 So far so good. But
Strauss neglects to answer an important challenge to common law constitutional interpretation
what I shall call the Cooper v. Aaron problemconcerning the relationship between the
written Constitution and what the Supreme Court has said about the Constitution. Here I repeat a
criticism I made of Strausss approach in a symposium marking the fiftieth anniversary of
Cooper v. Aaron, the Supreme Court decision reaffirming Brown v. Board of Education in the
face of resistance to it in Little Rock, Arkansas. 54
Strauss does not develop a criterion for distinguishing the Constitution from
constitutional law (common law). Cooper proclaims that the U.S. Supreme Court is the ultimate
interpreter of the U.S. Constitution for the federal system: [T]he federal judiciary is supreme in
the exposition of the law of the Constitution. 55 In recent years, many discussions of Cooper
have focused on this pronouncement, and on what Cooper entails for judicial supremacy. 56 My
focus will be different. We should distinguish between two fundamental interrogatives of
constitutional interpretation that are at issue in Cooper: (1) What is the Constitution? and (2)
Who may authoritatively interpret it? When people talk about the Supreme Courts opinion in
Cooper in terms of judicial supremacy, they are talking about Coopers answer to the Who
interrogative: the Courts anointment of itself as the ultimate interpreter of the Constitution. 57
But I want to talk about Coopers answer to the What interrogative. In Cooper, the
Supreme Court practically equates the Constitution itself with what the Supreme Court says

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about the Constitution. The reasoning proceeds by syllogism.
Major premise: Article VI of the Constitution makes the Constitution the
supreme Law of the Land. 58
Minor premise: Marbury declared that [i]t is emphatically the province and duty
of the judicial department to say what the law is. 59
Conclusion: It follows that the interpretation of the Fourteenth Amendment
enunciated by this Court in the Brown case is the supreme law of the land. 60
Put another way, the Court practically obliterates the distinction between the Constitution itself
and constitutional law. In doing so, as President Ronald Reagans Attorney General Edwin
Meese famously objected, [T]he Court seemed to reduce the Constitution[, our fundamental and
paramount law,] to the status of ordinary constitutional law, and to equate the judge with the
lawgiver. 61
What turns on this distinction between the Constitution itself and constitutional law?
Nothing less than whether we can criticize the Supreme Courts decisions as erroneous
interpretations of the Constitution. As Meese put it, To confuse the Constitution with judicial
pronouncements allows no standard by which to criticize and seek the overruling of what
University of Chicago Law Professor Philip Kurland once called the derelicts of constitutional
lawcases such as Dred Scott and Plessy. 62 It pains me to acknowledge that Meese might ever
have been right about anything, but I must say it: Meese was right this time. 63 And lets observe
a splendid irony: Meese is saying that the implication of Cooper, the case that reaffirmed Brown,
which overruled Plessy, is that we cannot criticize Plessy as wrongly decided.
I want to generalize Meeses criticism of Cooper and frame it as a challenge to Strausss
theory of common law constitutional interpretation. For Cooper, in its equation of the

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Constitution itself with constitutional law, may seem to be a canonical expression of common
law constitutional interpretation. Therefore, one of the challenges for common law constitutional
interpretation is to articulate a criterion for criticizing the Supreme Courts interpretations of the
Constitution on the ground that they have misinterpreted the Constitution. Any adequate theory
of constitutional interpretation needs a criterion for distinguishing the Constitution itself from
constitutional law. Originalism in all of its varieties readily provides such a criterion: Original
meaning of the Constitution (however conceived) may trump judicial doctrine of constitutional
law at any time. Living originalists like Balkin, no less than narrow originalists like Meese, can
say this. Dworkins moral reading of the Constitution, and Barbers and my philosophic
approach to constitutional interpretation, also readily provide such a criterion: We can always
criticize judicial doctrine from the standpoint of the theory that provides the best justification of
the Constitution or the best understanding of our abstract constitutional commitments.
What about Strausss theory of common law constitutional interpretation? Does it
provide a criterion for distinguishing the Constitution from constitutional law? Does it provide a
standpoint from which to criticize the derelicts of constitutional law such as Plessy? From
which to justify Brown? Indeed, from which to criticize the work of the Roberts Court?
A theory of common law constitutional interpretation that incorporates a moral reading of
or philosophic approach to the Constitution could justify Brown: it would say that the anti-caste
principle of equal citizenship manifested in Brown is the best interpretation of the Equal
Protection Clause and that Plessys view that separate but equal does not deny equal protection
is mistaken. (Recall the discussion of these cases in Chapter 4 of this book.)
Now, Strauss presumably would say that a rational traditionalist theory of common law
constitutional interpretation like his own 64since it does not merely defer to tradition as such

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but subjects it to rational criticism and developmentalso can criticize Plessy and justify Brown,
but it is a little harder to articulate why. He certainly allows moral insights and judgments into
common law constitutional interpretationhe speaks of judgments of fairness and good
policybut it is less clear how he can do so (and how he does so) than it is, say, with Dworkins
moral reading or Barbers and my philosophic approach. And so, we should ask whether a moral
reading is really doing the work here in criticizing Plessy and justifying Brown, not a version of
common law constitutional interpretation that is an alternative to a moral reading.
D. Constitutional Amendments and the Living Constitution
Chapter Six is at once the most provocative and most compelling part of Strausss book.
As against the familiar originalist arguments that the very existence of Article V, with its
procedures for constitutional amendment, is an argument against the living constitution, Strauss
argues, Article V...vindicates the claim that we have a living constitution. He argues, The
living Constitution is the primary...way in which the Constitution, in practice, changes. He even
argues, ingeniously, that Article V and constitutional amendments are largely irrelevant to
constitutional change. 65 For Strauss, amendments are not relevant because the Constitution
already contains general principles that courts can elaborate over time through common law
constitutional interpretation. The Constitution, properly interpreted, already contains the
principles that have been the subject of formally adopted amendments like the Twenty-Fourths
abolition of the poll tax in federal elections and of formally proposed amendments like the Equal
Rights Amendment. We dont need these amendments because we already have the general
constitutional commitment to equal protection. At one point, he says: Living constitutionalism
is about how constitutional principles change, not about how they get established in the first
place. 66 Here I think Strauss bypasses an opportunity to argue that the very obduracy of Article

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V to constitutional amendment reflects the genius of the constitutional design: it fosters the kind
of approach to interpretation that he proposes.
As I noted in Chapter 3, many have criticized Article V for its obduracy to constitutional
amendment. Here I shall reiterate the second point I made there in support of Article V. The
obduracy of Article V to ready and easy amendment of the Constitution has encouraged and
fostered broad interpretation of the Constitutions rights-protecting and power-conferring
provisions. It has underscored the character of the Constitution as a charter of majestic
generalities and abstract principles as opposed to a code of relatively specific original meanings
(as original expected applications). Thus, Article V has underwritten approaches to constitutional
interpretation like those of Dworkins moral reading, Sagers justice-seeking constitutionalism,
and Barbers and my philosophic approach (not to mention Strausss common law approach and
Balkins living originalism). That is as it should beby design, not by accident. And not because
judges have circumvented Article V as the exclusive route for legitimate constitutional change.
I grant that an argument along these lines is implicit in Strausss discussion of [t]he
genius of the U.S. Constitution: precisely that it is specific where specificity is valuable and
general where generality is valuable. 67 I would bring this argument to bear on the analysis of
the Article V procedures for amendment themselves: they underwrite common law constitutional
interpretation as a moral reading of the Constitution. In Chapter 8, I shall return to these matters
in arguing against the need formally to rewrite the Constitution, whether through specific Article
V amendments or a general constitutional convention.
In sum, Strausss The Living Constitution presents devastating criticisms of originalism
as conventionally understood and develops a powerful and attractive theory of constitutional
interpretation and change. Strausss theory of living constitutionalism is best understood as a

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moral reading of the Constitution, for it conceives the Constitution as embodying abstract moral
and political principles, not codifying concrete historical rules or practices. And it conceives
constitutional interpretation as a project of elaborating and realizing the best understandings of
our constitutional commitments over time, through our practices. My own moral reading or
philosophic approach includes a conception of common law constitutional interpretation that
builds upon Strausss conception, making these friendly amendments.
III. THERE IS ONLY ONE EQUAL PROTECTION CLAUSE: AN APPRECIATION
OF JUSTICE STEVENSS MORAL READING OF THE EQUAL PROTECTION CLAUSE

Finally, I shall elaborate a third aspect of the place of precedent and doctrine in a moral
reading of the Constitution: the precedents and doctrines we develop through common law
constitutional interpretation cannot displace or avoid the need for making moral judgments. To
illustrate this third aspect, I shall examine Justice Stevenss equal protection jurisprudence,
which I interpret as a moral reading. Stevens famously wrote:
There is only one Equal Protection Clause. It requires every State to govern
impartially. It does not direct the courts to apply one standard of review in some
cases and a different standard in other cases. 68
These words open his concurring opinion in Craig v. Boren. That was the first case in which the
Supreme Court applied intermediate scrutiny to gender-based classifications, carving out a
third tier of equal protection analysis between strict scrutiny and deferential rational basis
scrutiny.
What does Stevens mean when he says, notwithstanding the precedents articulating three
tiers of scrutiny: There is only one Equal Protection Clause? I shall interpret him as making
two important jurisprudential exhortations. First, he is exhorting that, to paraphrase Chief Justice

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John Marshall in McCulloch v. Maryland, [W]e must never forget, that it is a constitution [not a
doctrinal framework] we are expounding. 69 Put another way, Stevens is admonishing that in
elaborating complex doctrinal frameworks, the Supreme Court should not lose sight of its
obligation to make normative judgments about the meaning of our constitutional commitments.
On this view, Stevens is worried that the Court is forgetting the Constitution and indulging the
lawyerly yen to develop a complex doctrinal framework. Why might the Court do this? Because
justices may think they can avoid making difficult normative judgments about the meaning of
our constitutional commitments by making more mundane decisions about what tier of analysis
applies to a given case, which in turn automatically decides the case. Worse yet, they may use
doctrinal frameworks to obfuscate the need for, and the fact of, normative judgments that cannot
be reduced to the application of bright-line rules. This is not to say that we should not have
doctrine; it is just that it should not take the place of making judgments in elaborating our
constitutional commitments to equal protection for all.
Second and related, Stevens is making an exhortation about the form or structure that
doctrine should take: standards, not bright-line or rigid rules. As Kathleen Sullivan put it, he is
the quintessential Justice of standards as contrasted with Justices of rules. 70 This is a general
feature of Stevenss jurisprudence. For example, he might just as well have written, in cases
applying the complex doctrinal framework for securing freedom of expression, that there is only
one First Amendment. 71 And in cases applying the complex doctrinal framework for protecting
substantive liberties under the Fourteenth Amendment, that there is only one Due Process
Clause. 72 Applying standards requires making normative judgments.
A. How Many Equal Protection Clauses Are There?
Lets have a pop quiz. This is a pedagogic exercise I use in my Constitutional Law class

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at the end of our section on the Equal Protection Clause.
How many Equal Protection Clauses are there?
(a) One
(b) Two
(c) Three
(d) Four
(e) Five
(f) Six
(g) All of the above
I ask my students, What is the best argument for each answer? At the end, I ask, Was
Justice Stevens right after all? Is [t]here . . . only one Equal Protection Clause, with a
continuum of judgmental responses rather than three sharply delineated standards of review? 73
I also ask, Was Justice Marshall right after all? Instead of a rigid three-tier framework, do we
have a spectrum of standards? I shall go through this exercise here. In doing so, I will use and
flesh out the following graphic illustration of the Equal Protection doctrinal framework.

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Strict scrutiny

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Loving; Skinner

Strict scrutiny not strict in theory, but fatal in fact

Adarand; Grutter, Fisher (yet not feeble in fact)

___________________________
Exceedingly persuasive justification
Intermediate scrutiny

VMI

Craig

___________________________
Rational basis scrutiny with bite
Deferential rational basis scrutiny

Cleburne; Plyler; Romer, Windsor

Williamson
What is the best argument that the answer is one? Well, that is Stevenss argument,
made originally in Craig and elaborated in City of Cleburne v. Cleburne Living Center, Inc.
Again, in Craig, Stevens argued that [t]here is only one Equal Protection Clause. It requires
every State to govern impartially. It does not direct the courts to apply one standard of review in
some cases and a different standard in other cases. 74 In Cleburne, Stevens elaborated, In fact,
our cases have not delineated threeor even one or twosuch well-defined standards. Rather,
our cases reflect a continuum of judgmental responses to differing classifications which have
been explained in opinions by terms ranging from strict scrutiny at one extreme to rational
basis at the other. 75 The courts cannot avoid making normative judgments about whether

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practices demean or humiliate people, or reduce them to or maintain them in the status of an
inferior race or caste, in violation of the governments obligation to govern impartially.
What is the best argument for two? That was the best answer before Craig, and in fact
was the answer given by the Supreme Court in cases like Dandridge v. Williams 76 and San
Antonio v. Rodriguez. 77 What are the two standards or tiers? Strict scrutiny whenever a law rests
upon a suspect classification or impinges upon a fundamental right or interest. First, there is
strict scrutiny of the end: The law must be justifiable as furthering a compelling governmental
objective. Second, there is strict scrutiny of the fit between that end and the law considered as a
means to further it: The law must be necessary or narrowly tailored to further such an objective.
Otherwise, the court applies deferential rational basis scrutiny of the end (merely requiring that
the law be justifiable as furthering a legitimate governmental objective) and of the fit between
that end and the means (merely requiring that it be thought to be rationally related to furthering
such an objective).
The Courts decisions in Dandridge and Rodriguez prompted Justice Marshall to dissent
against rigid two-tier analysis and to offer his alternative, a spectrum of standards. In
Rodriguez, Marshall wrote:
The Court apparently seeks to establish today that equal protection cases fall into
one of two neat categories which dictate the appropriate standard of review
strict scrutiny or mere rationality. But this Courts decisions...defy such easy
categorization. A principled reading of what this Court has done reveals that it has
applied a spectrum of standards in reviewing discrimination allegedly violative of
the Equal Protection Clause. This spectrum clearly comprehends variations in the
degree of care with which the Court will scrutinize particular classifications,

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depending, I believe, on the constitutional and societal importance of the interest
adversely affected and the recognized invidiousness of the basis upon which the
particular classification is drawn.... 78
Such a reasoned approach 79 would be that of a moral reading requiring normative judgments
about importance and invidiousness, not a doctrinalism that avoids such judgments by deciding
cases automatically.
What is the best argument for three? That is the best answer as of Craig (1976), and in
fact is the answer given by the Court in that case. What is the third standard or tier? Intermediate
scrutiny for gender-based classifications: [C]lassifications by gender must serve important
governmental objectives and must be substantially related to achievement of those objectives. 80
In Mississippi University for Women v. Hogan, the Court reaffirmed this formulation for genderbased classifications but also used the phrase exceedingly persuasive justification. 81
(Subsequently, the Court evidently also applied intermediate scrutiny to classifications based on
illegitimacy (or directed at nonmarital children) 82 and, for a time, to affirmative action
measures approved by Congress. 83)
What is the best argument for four? Well, that is the best answer as of Cleburne (1985),
though that is not the answer officially given by the Court in that case. (The Court officially
adheres to a three-tier framework.) There the Court invalidated a zoning ordinance as applied to
a group home for mentally retarded persons. 84 What is the unofficial fourth standard or tier? It
is rational basis scrutiny with bite, as contrasted with the deferential rational basis scrutiny
exemplified by Williamson v. Lee Optical. 85 What does the bite consist of? The answer is a
somewhat more searching inquiry into both end and fit between means and end. First, as for the
end, instead of simply deferringWilliamson-styleto asserted governmental objectives as

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unquestionably legitimate, the Court inquires whether they reflect animus or a bare . . . desire
to harm a politically unpopular group and thus are not legitimate. 86 This inquiry requires a
normative judgment about whether laws demean or humiliate. Second, with respect to fit
between means and end, instead of simply deferringWilliamson-stylebecause the legislature
might have thought that the law is rationally related to furthering a legitimate governmental
objective, the Court inquires whether the law actually does further such an objective. 87 Three
other notable cases exemplifying such rational basis scrutiny with bite are Plyler v. Doe, 88
invalidating a law denying education to children of illegal aliens, Romer v. Evans, 89 invalidating
a state constitutional amendment forbidding measures that protected gays and lesbians against
discrimination, and United States v. Windsor, 90 invalidating a section of the federal Defense of
Marriage Act defining marriage, for purposes of federal law, as consisting of the union of one
man and one woman.
What is the best argument for five? That is the best answer as of Adarand
Constructors, Inc. v. Pena (1995), though again, that is not the answer officially given by the
Court in that case. There, the Court held that strict scrutiny applies to racial classifications
embodied in affirmative action programs. 91 What is the unofficial fifth standard or tier? Hitherto,
strict scrutiny for racial classifications had been said, in Gerald Gunthers famous words, to be
strict in theory and fatal in fact. 92 In Adarand, Justice OConnors opinion for the Court
officially applies strict scrutiny, though she was at pains to dispel the notion that strict scrutiny
is strict in theory, but fatal in fact. She wrote: The unhappy persistence of both the practice
and the lingering effects of racial discrimination against minority groups in this country is an
unfortunate reality, and government is not disqualified from acting in response to it. 93 Thus, she
gave notice that some affirmative action programs might survive strict scrutiny instead of being

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automatically invalidated. Deciding which benign programs to uphold and which invidious
ones to invalidate will require normative judgments. (Here we should recall Stevenss argument
that [t]here is no moral or constitutional equivalence between a policy that is designed to
perpetuate a caste system and one that seeks to eradicate racial subordination, along with
Thomass retort that there is such an equivalence. 94
Justice OConnors words were vindicated in her opinion of the Court in Grutter v.
Bollinger (2003), upholding University of Michigan Law Schools affirmative action program.
There she reiterated that strict scrutiny is not strict in theory, but fatal in fact. 95 She added,
Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by
it. Her opinion also spoke of deferring to the Law Schools educational judgment as well as
deferring to a universitys academic decisions, formulations that sound decidedly more
deferential than the language we typically associate with strict scrutiny. 96
Justice OConnors opinion in Grutter prompted Chief Justice Rehnquist and Associate
Justices Kennedy, Scalia, and Thomas to protest in dissent that the Court had abandoned strict
scrutiny. 97 When it comes to affirmative action programs, they wanted strict scrutiny indeed to
be automatically fatal in fact. Arguably, on their view, the Court was squeezing out a less strict
form of strict scrutiny lying somewhere between strict scrutiny and intermediate scrutiny.
Subsequently, in Fisher v. University of Texas (2013), after Justice Alito replaced Justice
OConnor, the majority was at pains to insist that strict scrutiny, even if not fatal in fact,
should not be feeble in fact. 98
What is the best argument for six? That is the best answer as of United States v.
Virginia (1996), although again that is not the official answer given by the Court in that case.
There the Court held that the Virginia Military Institutes exclusion of women violated the Equal

208
Protection Clause. What is the unofficial sixth standard or tier? Officially, Justice Ginsburgs
opinion applies the same intermediate scrutiny standard to gender-based classifications that the
Court had established in Craig and reaffirmed in Hogan. 99 But she picks up on the phrase
exceedingly persuasive justification from Justice OConnors opinion in Hogan. 100 And
exceedingly persuasive justification may sound stricter than intermediate scrutiny, even if not
as strict as strict scrutiny.
This prompted Justice Scalia in dissent to object that Justice Ginsburg in effect was
applying strict scrutiny. 101 Now, it is well known that as a law professor and as a litigator,
Ginsburg had argued for applying strict scrutiny to gender classifications. Indeed, she almost
succeeded: A plurality of four justices endorsed that approach in a case she litigated, Frontiero v.
Richardson. 102 But a majority never adopted strict scrutiny, instead adopting intermediate
scrutiny in Craig. In United States v. Virginia, Scalia clearly suspects that Ginsburg is applying
strict scrutiny under the guise of applying intermediate scrutiny. 103 Underlying their
disagreement about tiers of scrutiny are their radically different normative judgments about
Virginias history and tradition of excluding women from VMI. As discussed in Chapter 2,
whereas Ginsburg sees the maintenance of a caste system denying women the status of full and
equal citizenship, Scalia sees the maintenance of an unbroken and hallowed tradition that is
worthy of being preserved rather than destroyed. 104
What is the best argument for all of the above? As I hope I have shown, there is an
argument for each of the above answers. Otherwise, my pedagogic exercise has failed.
B. Both Justice Stevens and Justice Marshall Were Right After All
What does this pedagogic exercise teach us about the Equal Protection Clause?
(a) That equal protection jurisprudence is a jumble?

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(b) That Justice Stevens was right after all? That [t]here is only one Equal Protection
Clause, with a continuum of judgmental responses instead of three clearly defined tiers? And
indeed that doctrinal developments since Craig and Cleburne have borne out the wisdom of his
argument?
(c) That Justice Marshall was right after all? That there is a spectrum of standards
instead of two or three rigid tiers? And again, that doctrinal developments since Rodriguez have
shown the wisdom of his conception?
(d) All of the above?
The moral of my story is that both Stevens and Marshall were right after all: There is
only one Equal Protection Clause, with a continuum of judgmental responses or a spectrum of
standards. And in interpreting that Clause, we cannot avoid making normative judgments about
what practices demean or humiliate through developing doctrinal frameworks with tiers of
scrutiny and claiming to apply them automatically to decide cases. Applying a moral reading, our
responsibility is to work out the best understandings of our constitutional commitments to equal
protection for all and to the sovereigns duty to govern impartially.
IV. CONCLUSION
Thus, a moral reading or philosophic approach would give both fit and justification their
due in developing faithful understandings of our constitutional commitments. It would treat
precedents as factors or resources, not obligations. It would build out the best understandings of
our constitutional commitments through a common law constitutional interpretation that works
itself pure, striving for coherence and integrity. Finally, a moral reading or philosophic approach
would comprehend that doctrinal frameworks cannot displace or avoid normative judgments in
articulating the best understandings of our commitments.

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NOTES TO CHAPTER FIVE
1. OLIVER WENDELL HOLMES, Learning and Science, in COLLECTED LEGAL PAPERS 138, 139
(1920).
2. RONALD DWORKIN, LAWS EMPIRE 239 (1986).
3. ABNER S. GREENE, AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A
LIBERAL DEMOCRACY (2012).
4. JACK M. BALKIN, LIVING ORIGINALISM (2011).
5. DAVID STRAUSS, THE LIVING CONSTITUTION (2010).
6. GREENE, AGAINST OBLIGATION, supra note 3, at 169-171, 192-97, 201-04 (criticizing
DWORKIN, LAWS EMPIRE, and JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY:
THE CASE OF AUTONOMY (2006)); Abner S. Greene, The Fit Dimension, 75 FORDHAM LAW
REVIEW 2921, 2926-48 (2007) (same).
7. GREENE, AGAINST OBLIGATION, supra note 3, at 161-63, 165-66, 172-81.
8. E.g., Anthony J. Sebok, The Insatiable Constitution, 70 SOUTHERN CALIFORNIA LAW REVIEW
417, 419-20 (1997).
9. E.g., Henry P. Monaghan, Our Perfect Constitution, 56 NEW YORK UNIVERSITY LAW REVIEW
353, 364 (1981).
10. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 38 (1996); DWORKIN, LAWS EMPIRE, supra note 2, at 255.
11. DWORKIN, FREEDOMS LAW, supra note 10, at 36.
12. RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? PRINCIPLES FOR A NEW POLITICAL
DEBATE (2006).
13. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 220-21.

211

14. Id. at 63, 70, 80-81, 92-98.

15. GREENE, AGAINST OBLIGATION, supra note 3, at 12, 201, 204; Greene, The Fit Dimension,
supra note 6, at 2947.
16. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 92-98 (criticizing JOHN
HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) and CASS R.
SUNSTEIN, THE PARTIAL CONSTITUTION (1993)).
17. Id. at 93-94.
18. GREENE, AGAINST OBLIGATION, supra note 3, at 190-99.
19. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 6, 62, 66, 92-94.
20. GREENE, AGAINST OBLIGATION, supra note 3, at 194-95.
21. BALKIN, LIVING ORIGINALISM, supra note 4, at 14.
22. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 129, 140
(Amy Gutmann ed., 1997); Gary Lawson, Mostly Unconstitutional: The Case against Precedent
Revisited, 5 AVE MARIA LAW REVIEW 1, 4 (2007); Gary Lawson, The Constitutional Case
against Precedent, 17 HARVARD JOURNAL OF LAW & PUBLIC POLICY 23, 24 (1994).
23. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 7-9 (2014).
24. SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE BASIC
QUESTIONS 135-40, 190 (2007).
25. BALKIN, LIVING ORIGINALISM, supra note 4, at 5.
26. DWORKIN, LAWS EMPIRE, supra note 2, at 255; FLEMING, SECURING CONSTITUTIONAL
DEMOCRACY, supra note 6, at 16, 211, 225, 227.
27. GREENE, AGAINST OBLIGATION, supra note 3, at 201-06.
28. BALKIN, LIVING ORIGINALISM, supra note 4, at 256-59.

212

29. GREENE, AGAINST OBLIGATION, supra note 3, at 192, 197, 206.

30. Id. at 192-93, 196-97, 204-06.
31. Cf. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 78 (applying the
idea co-original and of equal weight in an analogous context (quoting John Rawls, Reply to
Habermas, 92 JOURNAL OF PHILOSOPHY 132, 163 (1995)).
32. DWORKIN, LAWS EMPIRE, supra note 2, at 65-66.
33. E.g., Lawrence B. Solum, The Unity of Interpretation, 90 BOSTON UNIVERSITY LAW REVIEW
551, 553-54 (2010).
34. E.g., Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on
Ronald Dworkins Moral Reading of the Constitution, 65 FORDHAM LAW REVIEW 1269, 1292
(1997).
35. GREENE, AGAINST OBLIGATION, supra note 3, at 201-04.
36. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 5, 63, 84, 92-93, 97-98.
37. Id.
38. LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE 11-28, 139-43 (2013); Louis
Michael Seidman, Op-Ed., Lets Give Up on the Constitution, N.Y. TIMES, Dec. 31, 2012, A19.
39. BALKIN, LIVING ORIGINALISM, supra note 4, at 74-81.
40. STRAUSS, THE LIVING CONSTITUTION, supra note 5, at 4.
41. Id. at 1825.
42. 17 U.S. 316, 407 (1819) (conceiving the Constitution as marking great outlines, not
enumerating details with the prolixity of a legal code).
43. 319 U.S. 624, 639 (1943) (conceiving the Constitutions commitments in the Bill of Rights
as majestic generalities).

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44. STRAUSS, THE LIVING CONSTITUTION, supra note 5, at 3436.

45. Id. at 101, 110.
46. Id. at 26-27.
47. Id. at 4345.
48. Omychund v. Barker (1744), 26 Eng. Rep. 15, 23 (Ch.); 1 Atk. 21,34 (Lord Mansfield).
49. See DWORKIN, LAWS EMPIRE, supra note 2, at 176275 (developing a theory of law as
integrity); FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 16 (developing
a Constitution-perfecting theory).
50. See FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 6, at 16.
51. BALKIN, LIVING ORIGINALISM, supra note 4, at 7499.
52. See STRAUSS, THE LIVING CONSTITUTION, supra note 5, at 51-76, 77-92.
53. Id. at 99102.
54. See James E. Fleming, Rewriting Brown, Resurrecting Plessy, 52 SAINT LOUIS UNIVERSITY
LAW JOURNAL 1141 (2008). In this section, I draw from pp. 114952 of that piece. I was
responding to Strausss keynote lecture for the symposium. David A. Strauss, Little Rock and the
Legacy of Brown, 52 SAINT LOUIS UNIVERSITY LAW JOURNAL 1065 (2008).
55. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
56. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional
Interpretation, 110 HARVARD LAW REVIEW 1359, 1372-81 (1997).
57. See WALTER F. MURPHY, JAMES E. FLEMING, SOTIRIOS A. BARBER & STEPHEN MACEDO,
AMERICAN CONSTITUTIONAL INTERPRETATION 14-17 (5th ed. 2014).
58. U.S. CONST. Art. VI, 2.
59. 5 U.S. (1 Cranch) 137, 177 (1803).

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60. Cooper, 358 U.S. at 18.

61. Edwin Meese III, The Law of the Constitution, 61 TULANE LAW REVIEW 979, 987 (1987).
62. Id. at 989.
63. Cf. Sanford Levinson, Could Meese Be Right This Time?, 61 TULANE LAW REVIEW 1071
(1987).
64. David A. Strauss, Common Law Constitutional Interpretation, 63 UNIVERSITY OF CHICAGO
LAW REVIEW 877, 891 (1996).
65. STRAUSS, THE LIVING CONSTITUTION, supra note 5, at 11539; see also David A. Strauss,
The Irrelevance of Constitutional Amendments, 114 HARVARD LAW REVIEW1457 (2001).
66. STRAUSS, THE LIVING CONSTITUTION, supra note 5, at 117.
67. Id. at 112.
68. Craig v. Boren, 429 U.S. 190, 211-12 (1976) (Stevens, J., concurring).
69. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
70. Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARVARD LAW
REVIEW 22, 88 (1992).
71. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 416 (1992) (Stevens, J., concurring in the
judgment); United States v. Eichman, 496 U.S. 310, 319 (1990) (Stevens, J., dissenting).
72. See JAMES E. FLEMING & LINDA C. MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES,
AND VIRTUES

240-41 (2013) (discussing the myth of strict scrutiny for fundamental rights

under the Due Process Clause by analogy to Stevenss understanding of the Equal Protection
Clause).
73. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 451 (1985) (Stevens, J.,
concurring).

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74. Craig, 429 U.S. at 211-12 (Stevens, J., concurring).

75. Cleburne, 473 U.S. at 451 (Stevens, J., concurring).
76. 397 U.S. 471 (1970).
77. 411 U.S. 1 (1973).
78. Rodriguez, 411 U.S. at 98-99 (Marshall, J., dissenting) (citing Dandridge, 397 U.S. at 520-21
(Marshall, J., dissenting)).
79. Id. at 99.
80. Craig, 429 U.S. at 197.
81. Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Kirchberg v.
Feenstra, 450 U.S. 455, 461 (1981); Personnel Administrator of Massachusetts v. Feeney, 442
U.S. 256, 273 (1979)).
82. Clark v. Jeter, 486 U.S. 456 (1988).
83. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), overruled by Adarand Constructors,
Inc. v. Pena, 515 U.S. 200 (1995).
84. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).
85. 348 U.S. 483 (1955).
86. Cleburne, 473 U.S. at 447-48 (quoting U.S. Department of Agriculture v. Moreno, 413 U.S.
528, 534 (1973)).
87. Id. at 447-50.
88. 457 U.S. 202 (1982).
89. 517 U.S. 620 (1996).
90. 133 S.Ct. 2675, 2692-93 (2013).
91. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

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92. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model
for a Newer Equal Protection, 86 HARVARD LAW REVIEW 1, 8 (1972). Justice Thurgood
Marshall used Gunthers words in concurrence in Fullilove v. Klutznick, 448 U.S. 448, 519
(1980) (Marshall, J., concurring in the judgment).
93. Adarand, 515 U.S. at 237.
94. Compare 515 U.S. at 243 (Steven, J., dissenting) with 515 U.S. at 240 (Thomas, J.,
concurring in part and concurring in the judgment).
95. Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (quoting Adarand, 515 U.S. at 237).
96. Id. at 326-29.
97. Id. at 379-80 (Rehnquist, C.J., dissenting); id. at 387 (Kennedy, J., dissenting); id. at 348
(Scalia, J., concurring in part and dissenting in part); id. at 350, 362 (Thomas, J., concurring in
part and dissenting in part).
98. Fisher v. University of Texas, 133 S.Ct. 2411, 2421 (2013).
99. 518 U.S. 515, 533 (1996).
100. Id. at 531.
101. Id. at 566, 570-71 (Scalia, J., dissenting).
102. 411 U.S. 677, 682 (1973) (plurality opinion).
103. See Virginia, 518 U.S. at 566 (Scalia, J., dissenting).
104. Compare Virginia, 518 U.S. at 532 (Ginsburg, J.) with 518 U.S. at 567, 568, 570 (Scalia, J.,
dissenting).

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PART III
Living Originalism and Living Constitutionalism as Moral Readings

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CHAPTER SIX
Fidelity Through Living Originalism: Redeeming the Promises of the Constitution
In Chapter 5, in elaborating a moral reading of the Constitution, I built upon and recast a
leading conception of living constitutionalism, David Strausss theory of common law
constitutional interpretation. In this chapter, in further developing a moral reading, I shall build
upon and recast another leading conception of living constitutionalism, Jack Balkins theory of
living originalism. It seems fruitful simultaneously to draw upon Balkins Living Originalism
and Strausss The Living Constitution, given three similarities between these works. 1 First, both
books have the word living in their titles. They are engaged in a debate about the form that
living constitutional theory should take. This is code for offering alternatives to originalism as
conventionally understood. Indeed, these books are two of the best criticisms of conventional
varieties of originalism ever written. But if Strauss came to bury originalism, Balkin came to
praise it. Or, Balkin came to bury conventional forms of originalism, but to praise a new form,
living originalism.
Second, both Balkin and Strauss make evidently conservative arguments to justify their
liberal theories of living originalism and living constitutionalism. I want to point out two parallel
ironies. Balkin claims that originalismwhich as conventionally understood makes a virtue of
thwarting constitutional changeprovides the best foundation for a liberal theory of
constitutional change. 2 And Strauss contends that Edmund Burkewho conventionally is
understood to oppose changeprovides the best justification for a liberal theory of the living
constitution. 3
Third, the two books complement one another, and to some degree may remedy one
anothers shortcomings. Sanford Levinson drew a famous distinction between constitutional

219
protestants and constitutional catholics: protestants insist on the authority of every individual
citizen to interpret the Constitution, while catholics insist on the courts as the ultimate if not
exclusive interpreters of the Constitution.4 If Balkin is our most thoroughgoing constitutional
protestant, 5 Strauss may be one of our most committed constitutional catholics. 6 That is, Balkin
provides the best account to date of popular constitutional interpretation outside the courts, while
Strauss provides the best account to date of common law constitutional interpretation inside the
courts. Perhaps the two together provide the groundwork for a more complete, ecumenical
approach to living constitutional interpretation.
In Chapter 1, I observed that in constitutional theory that we are witnessing the
Balkanization of originalism (when originalism splits into warring camps) along with the
Balkinization of originalism (when even Balkin, hitherto a progressive, pragmatic, living
constitutionalist, becomes an originalist). In Chapters 1 and 2, I examined the spectacular
concessions that originalists have made to their critics including moral readers, even as they have
declared victory over those critics, asserting that we are all originalists now. I have been
seeking to show the extent to which we are all moral readers now. Whether or not we are all
moral readers now, I shall argue in this chapter that Balkins living originalism is best
understood as a moral reading of the Constitution.
Balkin once wrote a piece entitled The Top Ten Reasons to be a Legal Pragmatist. 7 I
shall list the top ten reasons to embrace Balkins living originalism: five relating to his living
originalism in its own right and five concerning his critique of conventional originalisms.

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I. TOP TEN REASONS TO BE A LIVING ORIGINALIST
A. Five Great Things About Balkins Living Originalism in Its Own Right
First, Balkin provides, in Living Originalism and its companion volume, Constitutional
Redemption: Political Faith in an Unjust World, 8 one of the two best accounts of constitutional
faith yet developed; the other being Levinsons account in his excellent book, Constitutional
Faith. 9 With all due respect to Levinson, I believe that Balkins account is more constructive and
confident about the possibility of redemption of our faith. To put the contrast starkly, Balkins
faith is rooted in commitment to the possibility of redemption through a project of realizing our
aspirations (as in, faith will show us the way), whereas Levinsons faith is rooted in skepticism
and doubt about that possibility (as in, faith is all we have to go on). Indeed, Balkins faith has
led him to develop an abstract, aspirational originalism, whereas Levinsons lack of faith has
driven him to condemn our Constitution as undemocratic and to call for a new constitutional
convention (to be discussed in Chapter 8). 10
Second, Balkins two books together offer the most constructive use of narrative or story
yet developed in U.S. constitutional thought. Skeptics about the value of stories should be
forced to reexamine their doubts upon reading his powerful and inspiring development of the
idea of our constitutional project as a narrative of redemption. Much of the work on stories
focuses on the standpoints of minority communities or outsiders. 11 Balkin shows how not only
minority communities or outsiders, but also social movements in general, can bring about
constitutional change by pressing their narratives of redemption. 12 Ken Kersch has observed that
conservatives have been more effective in constructing such narratives than liberals and
progressives. 13 I conceive Balkin as basically telling liberals and progressives that they need to
learn how to construct narratives of redemption instead of forsaking faith and fidelity.

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Third, Balkin offers a theory of constitutional change that he argues is superior to Bruce
Ackermans account in his multi-volume We the People project (to be discussed in Chapter 7). 14
Balkin argues that we do not need Ackermans complex apparatus of amendment outside the
formal procedures of Article V to give an adequate account of constitutional change and
transformation after the Civil War and during the New Deal. 15 Instead, we do better with
Balkins (and Levinsons) idea of partisan entrenchment and Balkins (and Reva Siegels)
accounts of social movements, 16 together with Balkins account of fidelity and redemption.
Fourth, Balkin develops the best account to date of constitutional legitimation and of
what Justice Brennan and others have called contemporary ratification 17 (an idea to which I
shall return at the end of this chapter). In many formulations, the idea of contemporary
ratification seems hardly more than a metaphor or slogan. Balkin richly describes the processes
of constitutional legitimation and contemporary ratification through constitutional protestantism,
social movements, and the like: the processes whereby the basic law of the Constitution
becomes both higher law and our law, not just an authoritarian imposition by people who are
long dead and gone. 18 What is more, it is the best version of popular constitutionalismboth
positive and normativeyet developed. On Balkins account, constitutional law is not just a
practice by judges and lawyers in elaborating legal terms of art but also by a practice by the
people themselves in contesting the meaning of our constitutional commitments.
Fifth, Balkin in these two books elaborates a compelling historically grounded
aspirational constitutionalism. He skillfully weaves together a constitutional historicism with an
aspirational constitutionalism. 19 Many works that are historicist tend to be determinist or
complacent, draining the critical and aspirational force from our constitutional commitments.
Many works that are aspirationalist tend to be abstract and universalist, not sufficiently grounded

222
in our particular history with our particular commitments. Though in places Balkins historicism
seems on the verge of getting the better of his aspirationalism, 20 the latterhis faith in the
project of working out the best interpretations of our commitmentssurvives, indeed triumphs.
His is a hortatory historicism and a grounded aspirationalism. Walking this tightrope is no easy
task, but he pulls it off with considerable aplomb. He develops accounts thatin terms of
Dworkins famous formulation of the two dimensions of best interpretationboth fit and
justify the Constitution and our constitutional practice. 21 My major criticism, suggested below,
is that Balkin is too bashful about his aspirational constitutionalismframing it within a
constitutional historicismand therefore he leaves unexplored the affinities between his own
aspirationalism and more openly aspirational moral readings of the U.S. Constitution.
B. Five Great Things About Balkins Critique of Conventional Originalisms
Balkins critique of conventional originalismsin particular, original-expectedapplications originalismis a rout, cleverly developing cogent, dispositive criticisms. One, he
shows that original-expected-applications originalism is not faithful to original meaning. His
own method of text and principle is more faithful. The upshot of his analysis is that originalexpected-applications originalism is inherently revisionist. Because of its substantive
(conservative), institutional (restraint), and jurisprudential (rule of law as a law of rules)
commitments, original-expected-applications originalism revises the Constitutionfrom our
charter of abstract aspirational principles into a code of concrete historical rulesrather than
being faithful to it. 22
Two, Balkin skewers conservative originalism on the place of precedent in our
constitutional practice. Conservative originalism treats precedents inconsistent with original
expected applications as mistakes for which we have to make a pragmatic exception to

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originalism. Balkin shows, to the contrary, that many of these precedents are worthy
achievements brought about through struggles over the meaning of our constitutional
commitments, indeed, achievements that reflect wisdom and moral learning. 23 These
achievements are worthy of honor and fidelity (I shall analyze Bruce Ackermans similar line of
argument in Chapter 7.)
Three, more generally, Balkin is devastating in his criticism of conventional originalisms
on his three criteria for an acceptable constitutional theory: that a theory should conceive the
Constitution as being capable of serving as basic law, higher law, and our law. 24 These are
good criteria for assessing contending theories, and conventional originalisms fail abysmally on
all of them, particularly the second and third. They fail to show why we should respect the
Constitution as higher law (as an expression of worthy aspirations) and why we should affirm
it as our law, as distinguished from viewing it as an authoritarian imposition by people who are
long dead and gone.
Four, Balkin shows that most versions of original-public-meaning originalism are a sham:
basically a public relations move to avoid the devastating criticisms of prior versions of
originalism. In practice, most original-public-meaning originalists conceive original public
meaning as basically original expected applications, and therefore they fall back into the
problems of those prior versions of originalism. 25 Despite their new theoretical justification of
originalism to evade the old criticisms, these original-public-meaning originalists leave the
practice of originalist scholarship the same: they just go on digging up the concrete intentions
and expected applications of the framers (and, in some instances, the ratifiers).
Five, Balkin shows that original-expected-applications originalism fails because its
proponents take it as axiomatically given and justified rather than making arguments for it. 26

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Proponents typically assume it to be the only legitimate approach to interpretation. I have
analyzed this problem in Chapter 1 in terms of the proponents assumption of the originalist
premise. Again, the originalist premise is the assumption that originalism, rightly conceived, is
the bestor indeed the onlyconception of fidelity in constitutional interpretation.
Axiomatically. Balkin is one of the few originalists whose work does not manifest the originalist
premise. He argues brilliantly for his originalism as an account of fidelity, faith, and redemption
and, counterintuitively, for an originalism as the best account of constitutional legitimation and
change. 27
II. BALKINS LIVING ORIGINALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION
Balkin frames the central clash in constitutional theory as being between originalism and
living constitutionalism. He splendidly develops the third way of a living originalism: a position
that combines the appeal of both originalism and living constitutionalism and avoids the
weaknesses of each. 28 Balkins arguments for his living originalism over conventional varieties
of originalism are absolutely cogent and thrillingly compelling. His arguments for his living
originalism over living constitutionalism are penetrating and persuasive. 29 But here, as in
Chapters 2 and 3, I would frame the central clash as being between originalisms and moral
readings. Balkins third way might be conceived not only as a living originalism but also as a
moral originalismthat is, an abstract originalism that is also a moral reading of the
Constitution.
First, Balkins method of text and principle conceives the Constitution as embodying not
only rules but also general standards and abstract principles. He, like Dworkin and me, rejects
efforts by originalists to recast abstract principles as if they were rules (or terms of art) by
interpreting them as being exhausted by their original expected applications. 30 In interpreting

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these general standards and abstract principles, we have to make moral and political judgments
concerning the best understanding of our commitments; history alone does not make these
judgments for us in rule-like fashion.
Second, more generally, Balkins living originalismwith his argument that fidelity to
original meaning is owed to our abstract framework and commitments 31resonates with the
Dworkinian idea of the Constitution as a charter of abstract powers and rights. It also resembles
Dworkins conception of the quest for fidelity in constitutional interpretation as pursuing
integrity with a moral reading of the Constitution. 32
Third, Balkins conception of our constitutional principles as embodying abstract
aspirations 33 accords with the aspirationalism of moral readings like Barbers and my
philosophic approach. 34 Our principles are not merely a historical deposit to be preserved but are
moral commitments that we aspire to realize more fully over time.
Fourth, and relatedly, Balkins ideas of faith and redemption resonate with a moral
readings commitment to interpret the Constitution so as to make it the best it can be. 35 Granted,
moral readers like Dworkin and I do not generally speak in terms of faith and redemption. But
there are unmistakable affinities here between Balkins commitment to interpret the Constitution
so as to redeem our faith in its promises and aspirations and Dworkins and my commitment to
interpret the Constitution in its best light.
Fifth, Balkins living originalism is also like a moral reading in recognizing
simultaneously (1) that we should interpret the Constitution so as to make it the best it can be or
to redeem our faith in its promises and aspirations, and yet (2) that the Constitution in practice is
highly imperfect. 36 I fear that Balkin may underappreciate this aspect of aspirational moral
readings like Dworkins. Indeed, I chastised him concerning this matter in my review of his other

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book, Constitutional Redemption. 37 Living Originalism, as well as Constitutional Redemption,
reflects a largely aspirational view of constitutional interpretation. 38 Yet, in Constitutional
Redemption, Balkin implies that some aspirational theories of constitutional interpretation are not
as historically grounded in the recognition of constitutional evil as his is. He mentions the work
of Sotirios Barber and Robin West, and he could have mentioned that of Dworkin. 39 Yet, if you
seek authors who are prepared to condemn U.S. constitutional practice today as unjust, evil, and
indeed teetering on failure, you need look no further than to the works of aspirationalists like
Barber, West, and Dworkin. 40
I have asked Balkin on several occasions what the difference is between his method of
text and principle and Dworkins moral reading of the Constitution. Each time I have asked
Balkin this question, he has seemed perplexed or even annoyed with me for suggesting that there
are similarities. Now that I have read Living Originalism, as well as Constitutional Redemption, I
understand why. But I also understand more clearly than before how his theory is a moral
reading. (In general, the reasons he resists this understanding track the reasons analyzed in
Chapter 4 for broad originalistss resistance to the moral reading, namely, the turn to history and
the democratic turn.)
Perhaps Balkin was annoyed because I asked what the difference is between his method
of text and principle and Dworkins moral reading. Perhaps I should have said, instead, that I
think he has developed a compelling moral reading. Maybe Balkin would not have grimaced at
that formulation. And then, perhaps I should have asked, what is the difference between his
theory and a moral reading?
Now, why would Balkin be annoyed at my suggestion that there are similarities between
his method of text and principle and Dworkins moral reading? I have several speculations. 41

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First, he is a postmodernist whose skepticism (about moral reality, right answers, best
interpretations, and all things Dworkinian) makes him loathe to acknowledge any affinities to a
theory that confidently contends that our principles have real meaning, that there are best
interpretations of them, and the like. This point may come out more clearly in Constitutional
Redemption, 42 but it is still evident in Living Originalism 43 (and his reply at the conference
confirmed this point). 44
Second, and relatedly, I speculate that Balkin is too much of a historicist to welcome
suggestions of affinities to Dworkins decidedly nonhistoricist views. This point, too, comes out
more clearly in Constitutional Redemption, 45 but again, it is implicit in Living Originalism. 46
Third, Balkins theory grows out of, and aims to justify, a protestant constitutionalism
and thus a popular constitutionalism.47 He undoubtedly sees Dworkin as an exemplar of a
catholic constitutionalism and a court-centered, anti-popular constitutionalism. 48 But we should
recall that Levinson, in his early work on the distinction between protestantism and catholicism
in constitutional interpretation, interpreted Dworkin as a constitutional protestant on the question
of who may authoritatively interpret the Constitution. 49 In any case, a moral reading is not
necessarily a court-centered, anti-popular vision. In fact, I daresay that constitutional
protestantism and popular constitutionalism are most obviously expressed in the form of moral
readings. For the lawyerhood of all citizens 50 celebrated by constitutional protestantism seems
more likely to generate readings of the Constitution as embodying moral principles than as
enacting lawyerly terms of art. Citizens arguing about the meaning and implications of our
constitutional commitments are likely to argue about the best understanding of moral and
political principles; any originalist project of discovering the concrete original meaning of
lawyerly terms of art will be beyond their ken (and beside the point of their contestation).

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Fourth, and relatedly, Balkins popular constitutionalism incorporates conceptions of
social movements, constitutional legitimation, and change that seem deeply at odds with, or at
least far afield from, Dworkins emphasis on how the superhuman judge Hercules decides hard
cases. 51 Furthermore, on Dworkins conception, it would seem that we must have an overriding
concern to preserve the Constitution against social movements and the vicissitudes of our
democratic culture and politics. 52 Fair enough. But that is simply to observe that the substance of
Dworkins moral reading, and of his conception of legitimate constitutional democracy, is quite
different from those of Balkins moral reading. It is not to say that Balkins theory is not a moral
reading.
For all these substantive reasons, and no doubt others that Balkin could provide, he
bristles at the idea that his theory has affinities to Dworkins moral reading. I want to conclude
with a fifth reason, alluded to at the beginning of this book, when I suggested that the only thing
originalists can agree upon is that they reject moral readings. This reason relates to rhetorical
strategy. I imagine not only that Balkin will resist my characterization of his living originalism as
a moral reading, but also that he will resist my embrace of his theory. Just as he would feel
uncomfortable if, say, an old originalist like Raoul Berger, instead of turning over in his grave
upon the publication of Balkins Living Originalism, were to rise from the dead to embrace
Balkins theory. Let me explain by discussing the rhetorical strategy of third ways between
originalisms and moral readings.
I observed in Chapter 4 that many in constitutional theory seek to develop broad or
abstract versions of originalism that follow a third way by avoiding the errors of narrow,
concrete originalism, but also avoiding Dworkins moral reading. Accordingly, I pointed out that
broad or abstract originalists like Lawrence Lessig and Balkin make a virtue of distinguishing

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their theories from, on the one hand, those of Berger and Justice Scalia and, on the other, that of
Dworkin. Likewise, faint-hearted or moderate originalists like Scalia make a virtue of
distinguishing their theories from the originalism of Berger as well as from the moral reading of
Dworkin. 53 Balkin no more wants to be identified with Dworkins moral reading than Scalia
wants to be identified with Bergers old, bitter-pill originalism.
Dworkin and Berger are equal and opposite foils, whipping boys for originalists of most
stripes. But Balkin shows that most conservative originalists, who officially adopt originalpublic-meaning originalism to avoid the pitfalls of Bergers originalism, end up embracing (or at
least practicing) original-expected-applications originalism and thereby veer over into Bergers
originalism or something similar. 54 And I suggest that Balkin, who is at pains to differentiate his
living originalism from Dworkins moral reading, ends up propounding a method of text and
principle that is the functional equivalent of a moral reading.
After all this praise for Balkins method of text and principle, I shall offer a criticism
related to substantive visionor substantive moral readingof the Constitution. Notably,
Balkins theory justifies ones having a substantive vision of the Constitution, but is not itself a
substantive vision. That is, the folks who have faith in the Constitution and seek redemption of
its aspirations have substantive visions of what the Constitutions core commitments are. In our
world of constitutional protestantism, that is as it should be. But Balkin himself does not put
forward a substantive vision of the Constitutions core commitments. In this respect, his book is
unlike many other leading books in constitutional theory. For example, John Hart Elys
Democracy and Distrust is not just a theory of how to interpret the Constitution or a theory of
judicial review: it also puts forward a substantive vision of the Constitutions core commitments,
a theory of representative democracy. And Cass Sunsteins The Partial Constitution is not just a

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theory of how to interpret the Constitution or a theory of judicial review: it also puts forward a
substantive vision of the Constitution as embodying a theory of deliberative democracy.
Similarly, my Securing Constitutional Democracy: The Case of Autonomy is not just a theory of
how to interpret the Constitution or a theory of judicial review: it also advances a substantive
vision of the Constitution as embodying a constitutional democracy protecting basic liberties
associated with deliberative democracy along with deliberative autonomy. The same can be said
of Dworkins many works of constitutional theory. 55
Substantively, I have no criticisms of Balkins applications in Living Originalism of his
method of text and principle to, for example, the Commerce Clause, the Privileges or Immunities
Clause, the Equal Protection Clause, and the Due Process Clause. These are skillful, learned,
compelling applications of the method to interpreting these important constitutional provisions
(and we can see from them that Balkin embraces a progressive substantive vision of the
Constitution). Balkin calls this fidelity to the original meaning. 56 As I noted in Chapter 4, I
would call it fit work in service of a moral reading of the Constitution. For he shows the
groundingin text, history, structure, and underlying principlesfor a progressive moral
reading of the Constitution. Thus, he shows that his reading, in Dworkins terms, fits and
justifies the Constitution. Living Originalism is also a splendid illustration of how a
progressive liberal moral reading of the Constitution can abundantly satisfy his three criteria for
an acceptable constitutional theory: that it shows the Constitution to be not only basic law, but
also higher law and our law. 57 Balkins oeuvre would be more satisfying if he applied the
method of text and principle to develop and justify a substantive visiona substantive moral
readingof the Constitution.

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IV. HYPOTHETICAL OF CONTEMPORARY RATIFICATION OF THE FOURTEENTH AMENDMENT
I shall formulate a hypothetical that will suggest an important way in which Balkins
living originalism is more like a moral reading than like conventional originalisms. Let us
imagine, in 2020, that We the People ratify the following Twenty-Ninth Amendment to the U.S.
Constitution (supposing my hypothetical Twenty-Eighth Amendment discussed in Chapter 2
already to have been ratified):
All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Look familiar? Is this a joke? Dont I know that the Fourteenth Amendment, section 1,
already contains this very text? But lets imagine that, out of worries about originalisms
expiration date (to use Adam Samahas formulation 58) and out of concern to achieve
contemporary ratification, We the People decide to ratify this language from 1868 in our own
time of 2020. How would different varieties of originalists interpret this Twenty-Ninth
Amendment? And how would moral readers like Dworkin and me?
I daresay that originalists like Scalia and Robert Bork would say that we have to interpret
the Twenty-Ninth Amendment exactly as they say we should interpret the Fourteenth
Amendment: as embodying the original public meaning or original expected applications as of
1868! One might think that, even on Scalias originalism, the relevant original public meaning
would be that of 2020. That, even if the public meaning of 2020 is irrelevant in interpreting the

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Fourteenth Amendment, it would be centrally relevant in interpreting the Twenty-Ninth
Amendment. And so, for example, liberty in 2020 would include substantive liberties like the
right of a woman to decide whether to terminate a pregnancy, the right of gays and lesbians to
intimate association, and the like, even if liberty in 1868 did not include such rights. But Scalia
and Bork do not take the view that the meaning of the Fourteenth Amendments Due Process
Clause is different from that of the Fifth Amendments Due Process Clause, even though one
was ratified in 1868 and the other in 1791. To the contrary, they argue (or assume) that the
meaning of the two is identical. 59 I fully expect that they would argue that the meaning of the
Twenty-Ninth Amendment is exactly the same as the meaning of the Fourteenth Amendment as
of 1868.
I also daresay that a living originalist like Balkin and a moral reader like Dworkin would
say that we should interpret the Twenty-Ninth Amendment exactly as they say we should
interpret the Fourteenth Amendment: as embodying the best understandings of privileges or
immunities, due process, and equality as of 2020. Balkin, because of his theory of constitutional
legitimation and change, with its understanding of contemporary ratification, can say this without
difficulty or embarrassment. So can Dworkin and I. But I believe that my hypothetical should
pose difficulty and embarrassment for Scalias and Borks versions of originalism. It suggests
that they would resist the idea of contemporary ratification even in circumstances of
contemporary ratification!
V. ORIGINAL MEANING WITHOUT CONVENTIONAL ORIGINALISM:
THE USES OF HISTORY IN CONSTITUTIONAL INTERPRETATION
In Chapter 1, I argued that many constitutional theorists seem to be in the grip of the
originalist premise. I sketched some problematic assumptions and misconceptions that

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undergird or drive that premise, labeling them as inequations. In assessing Balkins aspiration to
fidelity to original meaning, I shall return to the first of those inequations, original meaning
originalism.
Again, originalists like Scalia commonly say that the originalists are the only ones who
care about original meaning, and all those other folksthe nonoriginalistsdont. 60 That is,
Scalia asserts or assumes that originalism = original meaning. But, as Dworkin ably and
tirelessly pointed out, the disagreement between originalists and their critics is not about whether
original meaning should count in constitutional interpretationrather, the debate is about what
should count as original meaning. 61 For example, should we conceive original meaning quite
narrowly and concretely (as Scalia and Bork do)as relatively specific original meanings, as
concrete expected applications, as a deposit of concrete historical practices and detailed rules? Or
should we conceive original meaning more broadly and abstractly (as Dworkin, Balkin, and
Justice Brennan do)as relatively abstract commitments, as a charter of abstract aspirational
principles? Both sides claim or aim for fidelity to the relevant original meaning as they conceive
it. 62 Originalism reflects a particular conception of what should count as original meaning (or a
family of such conceptions), and a highly controversial and problematic one at that. Thus, a
commitment to honoring original meaning does not necessarily entail a commitment to
originalism. In fact, I argue (with Dworkin and Balkin), the best conception of the relevant
original meaning of many of the most significant provisions of the Constitution is that of abstract
aspirational principles.
Is it possible for a constitutional theorist to give due regard to original meaning in
constitutional interpretation without being an originalist in any conventional sense? Narrow
originalists, such as Bork and Scalia, have asserted that it is not. 63 On their view, it is

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hypocritical for anyone who is not a narrow originalist to make recourse to original meaninga
clear case of the devil quoting scripture. Their view is bogus. Remember, original meaning
originalism. Nevertheless, constitutional theorists who are not narrow originalists (including not
only moral readers and living constitutionalists but also new originalists) have not paid sufficient
attention to how arguments based on history, both adoption history and post-adoption history,
function in constitutional law. One of the many virtues of Balkins excellent books and
subsequent article, The New Originalism and the Uses of History, is that they show that one can
take adoption history and post-adoption history seriously without being a narrow originalist.
Balkin argues persuasively that the Supreme Court itself, when it makes arguments invoking
history, is not typically being originalist in any conventional, narrow sense (or even in a new
originalist sense). This is a significant argument and an important contribution to constitutional
theory.
In The New Originalism and the Uses of History, Balkin also brilliantly rethinks Philip
Bobbitts and Richard Fallons well-known formulations of the typical modalities or forms of
argument that lawyers and judges typically employ. Bobbitt offers six forms: text, history,
structure, prudence (including consequences), precedent (including judicial decisions,
interbranch conventions, political tradition, and social custom), and ethos. 64 Fallon formulates
five: text, historical intent, theory (including a wide range of different justifications), precedent,
and value (including moral theory, political theory, and natural law). 65 Balkin presents eleven
different modalities or styles of justification, ways in which lawyers, judges, and citizens argue
for constitutional constructions. 66
Borrowing from Michael Dorfs cogent analysis seeking to integrate normative and
descriptive constitutional theory, let us posit two gaps between normative and descriptive

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accounts of constitutional law. 67 The first gap poses a challenge for originalists: constitutional
theorists who accept an originalist normative account must acknowledge that they cannot
account descriptively for many constitutional law decisions that are not originalist in any
conventional sense. The second gap poses a challenge for theorists who accept a living
constitutionalist or moral reading normative account: they cannot account descriptively for the
significant role that arguments based on history (both adoption history and post-adoption history)
play in constitutional law.
We should accept the first gap as unbridgeable, and do so without any regret. It would
require a conservative counterrevolution beyond the wildest apocalyptic dreams of Bork and
Scalia to close that gap, and the moment of closure would be fleeting for courts promptly would
resume their practice of drawing upon sources besides concrete original meaning.
We might interpret Balkin, like Dorf, as taking up the challenge of bridging the second
gap. He does so by attempting to integrate a living originalist normative account of
constitutional decision-making with a descriptive account of how arguments based on history
actually function in Supreme Court opinions and more generally in our protestant
constitutional practice. I shall argue that Balkins normative account, like Dworkins moral
reading of the Constitution and Barbers and my philosophic approach, entails a commitment to
construct the interpretation that best fits and justifies the constitutional text, history, and
structure, as well as practice, tradition, and culture. I shall suggest that Balkins descriptive
account significantly contributes to our understanding of the quest for fit with such constitutional
materials.

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What are the uses of history in constitutional interpretation? Here Ill mention a few ideas
illustrating what I call constructivist uses of history (which differ significantly from conventional
originalist accounts of those uses).
Dorf has provided a rich descriptive account of arguments about original meaning, along
with post-enactment history, as they actually function in Supreme Court decisions. He shows that
such argument generally is not conventionally originalist. 68 His descriptive account richly
elaborates certain ways of using history to do fit workto show that an interpretation under
consideration has a footing in our constitutional text, history, or structure 69and it nicely
accords with the type of fit work called for by normative accounts such as Dworkins and my
own. He develops categories of ancestral originalism and heroic originalism, which are
species of an aspirational and hortatory constitutionalism rather than of originalism as
conventionally understood. 70 Ancestral originalism underscores the notion that an
interpretation should fit with our practice, tradition, and culture. Heroic originalism shows that
an interpretation should be in accord with our deepest aspirations and the best in us as a people.
As I have put it, we should conceive fidelity to the Constitution in terms of honoring our
aspirational principles rather than merely following our historical practices and concrete original
meaning, which no doubt have fallen short of those principles. These types of argument about
original meaning, and uses of history, give due regard to original meaning and post-enactment
history without being originalist.
Likewise, Christopher Eisgruber has argued that history should contribute to
constitutional jurisprudence as servant, not rival, to justice. 71 Eisgruber argues that history
matters specially to constitutional adjudication not because (as originalists want us to believe)
judges have an obligation to preserve the past, but because historical arguments can sometimes

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help them to represent the peoples convictions about justice. 72 For example, in making
judgments about justice in interpreting abstract constitutional provisions like the Equal
Protection Clause or the Executive Power Clause, judges cannot simply act on the basis of their
own best judgment about justice. Instead, they should draw upon history to show that those
judgments are plausibly attributable to the American people as a whole. 73 Thus, on his
conception of constitutional self-government, judges resort to history, not to obey the dead hand
of the past, but to enable them to discharge their responsibilities as a representative institution
speaking on behalf of the people about questions of moral and political principle. 74 Again, as I
would put it, Eisgruber demonstrates that judges use history to do fit work in service of a moral
reading: they show the grounding in our constitutional practice of the best normative
understanding of our constitutional commitments.
Reva Siegels work illustrates that history matters, not as it binds our choicesas it were,
through the law of the fatherbut as it informs our choices, decisions for which we as a
people are responsible. 75 Similarly, Martin Flaherty has suggested that in a post-originalist
world, we would take an experiential rather than an authoritarian approach to the use of history
in constitutional interpretation. 76 For example, we would look to past experience to assess how
given constitutional doctrines or mechanisms have succeeded or failed. He shows that such use
of history held a central place in the early republic. 77
Finally, Balkins work, although he characterizes it as a living originalism, shows how
history figures in a moral reading of the Constitution. Historywhether evidence of original
public meaning or precedent (or post-enactment history more generally)functions as a resource
for making arguments about the best understandings of our constitutional commitments, not as a
constraint that makes our decisions for us. More generally, as Balkin has shown, most uses of

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history in constitutional interpretation are not originalist in the sense of what I am calling
originalism as an ism: in the sense of striving to be faithful to the concrete understandings and
expectations of the historical framers and ratifiers. Instead, most uses of history are more
abstract, aspirational, or hortatory. 78 This is how history functions in moral readings. Not as it is
said to function in conventional originalist accounts: as determining answers to the questions that
we confront today. Abner Greenes work (discussed in Chapter 5) , although it is avowedly antioriginalist, is similar to Balkins in showing how historyor fit with original public meaning or
precedentserves as a factor in making arguments about the best understanding of the
Constitution as a matter of justice. 79 These examples are illustrative rather than exhaustive of
constructivist uses of history as distinguished from conventional originalist uses.
I conclude with an exhortation prompted by Balkins cogent account of the uses of
history in constitutional interpretation and construction. Our constitutional culture is not as
originalist as the narrow and broad originalists seem to assume. It certainly requires
constitutional lawyers and scholars to pay homage to history and to fit with historical materials,
but that is not to say that it is originalist. As argued in Chapter 1, originalism is an isma
conservative ideology that emerged in reaction to the Warren Court. Before Richard Nixon and
Robert Bork launched their attacks on the Warren Court, originalism as we now know it did not
exist. Constitutional interpretation in light of original understanding did exist, but original
understanding was regarded as merely one source of constitutional meaning among severalnot
as a general theory of constitutional interpretation, much less the exclusive legitimate theory.
Moreover, original understanding, especially at a relatively specific level, was understood to be
largely indeterminate and inconclusive. Regrettably, many constitutional lawyers and scholars in
recent years seem to have lost sight of this great wisdom. Balkins project promises to recapture

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this wisdom and to provide an eminently reasonable and sensible approach to arguments based
on original meaning and post-enactment history that are not conventional originalist arguments.
It holds out the hope of developing a constitutional theory that gives due regard to original
meaning and post-enactment history without being originalist in any conventional sense.
VII. CONCLUSION
Balkins Living Originalism presents devastating criticisms of originalism as
conventionally understood and develops a powerful and attractive theory of constitutional
interpretation, construction, and change. His theory of living originalism, like David Strausss
theory of living constitutionalism, is best understood as a moral reading of the Constitution. For
both conceive the Constitution as embodying abstract moral and political principles, not
codifying concrete historical rules or practices. And both conceive constitutional interpretation as
a project of elaborating and realizing the best understandings of our constitutional commitments.
Just as Balkin has resisted a moral reading in the first place, he may resist my recasting of his
theory as a moral reading. Nonetheless, I have found it valuable to build upon his account of
constitutional faith and constitutional redemption in developing my own conception of fidelity to
our imperfect Constitution and of interpreting the Constitution so as to make it the best it can be,
or so as to redeem its promises. If Strauss illuminates the place of precedent in a moral reading,
Balkin demonstrates the aspiration to fidelity in redeeming the promises of the Constitution
through a moral reading.

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NOTES TO CHAPTER SIX
1. JACK M. BALKIN, LIVING ORIGINALISM (2011); DAVID A. STRAUSS, THE LIVING
CONSTITUTION (2010).
2. BALKIN, LIVING ORIGINALISM, supra note 1, at 2834 (rejecting Scalias originalism,
according to which the whole purpose of the Constitution is to prevent change, in favor of a
framework originalism, within which the Constitution channels and shapes change rather than
preventing it).
3. STRAUSS, THE LIVING CONSTITUTION, supra note 1, at 4144.
4. SANFORD LEVINSON, CONSTITUTIONAL FAITH 29, 4042 (1988).
5. See JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD
10, 41, 6172, 94101, 23539 (2011) (developing a protestant theory, arguing that no institution
of government, especially the Supreme Court, has a monopoly on the authority to interpret the
Constitution and stressing the role of popular movements in interpreting the Constitution);
BALKIN, LIVING ORIGINALISM, supra note 1, at 7499 (developing a protestant theory of
constitutional faith and redemption).
6. Strauss does not focus exclusively on constitutional interpretation by the courts, but also
acknowledges the idea of the Constitution outside the Courts. See, e.g., STRAUSS, THE LIVING
CONSTITUTION, supra note 1, at 4748, 67, 121, 129. Nonetheless, his focus is on how courts
engage in common law constitutional interpretation. See id. at 33-49.
7. J. M. Balkin, The Top Ten Reasons to be a Legal Pragmatist, 8 CONSTITUTIONAL
COMMENTARY 351 (1991).
8. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5.
9. LEVINSON, CONSTITUTIONAL FAITH, supra note 4.

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10. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES
WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT 1124 (2006).
11. See, e.g., Robert M. Cover, The Supreme Court, 1982 Term: Foreword: Nomos and
Narrative, 97 HARVARD LAW REVIEW 4, 6568 (1983); Mari J. Matsuda, When the First Quail
Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMENS RIGHTS LAW REPORTER
7, 710 (1989); Kim Lane Scheppele, Foreword: Telling Stories, 87 MICHIGAN LAW REVIEW
2073, 207784 (1989).
12. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 2526; BALKIN, LIVING
ORIGINALISM, supra note 1, at 8189.
13. Ken I. Kersch, The Great Refusal: Liberals and Grand Constitutional Narrative,
unpublished paper presented at Wisconsin Center for the Study of Liberal Democracy
Conference on Is It Time to Rewrite the Constitution?, November 7-8, 2014.
14. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); 2 BRUCE ACKERMAN, WE THE
PEOPLE: TRANSFORMATIONS (1998); 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS
REVOLUTION (2014).
15. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 195203; BALKIN, LIVING
ORIGINALISM, supra note 1, at 7499, 139, 30912.
16. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 201; BALKIN, LIVING ORIGINALISM,
supra note 1, at 81-89; Jack M. Balkin & Sanford Levinson, The Processes of Constitutional
Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM LAW
REVIEW 489, 489502 (2006); Jack M. Balkin & Sanford Levinson, Understanding the
Constitutional Revolution, 87 VIRGINIA LAW REVIEW 1045, 106683 (2001); Jack M. Balkin &

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Reva B. Siegel, Principles, Practices, and Social Movements, 154 UNIVERSITY OF

PENNSYLVANIA LAW REVIEW 927, 929 (2006).
17. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27
SOUTH TEXAS LAW REVIEW 433, 433 (1986).
18. BALKIN, LIVING ORIGINALISM, supra note 1, at 4149, 5973.
19. Id. at 59-73; BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 116123, 174225.
20. See, e.g., BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 174225.
21. See, e.g., DWORKIN, LAWS EMPIRE 239 (1986).
22. BALKIN, LIVING ORIGINALISM, supra note 1, at 3-20, 10012.
23. Id. at 10, 11822.
24. Id. at 5973.
25. Id. at 10001, 10305.
26. Id. at 612.
27. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 116, 232, 24750; BALKIN, LIVING
ORIGINALISM, supra note 1, at 35-38, 7499, 320-29.
28. See BALKIN, LIVING ORIGINALISM, supra note 1, at 3-20, 256-73.
29. Id. at 5057, 277319. I make this judgment notwithstanding my respect for Strausss book
ably defending a living constitutionalism. See STRAUSS, THE LIVING CONSTITUTION, supra note
1.
30. BALKIN, LIVING ORIGINALISM, supra note 1, at 6-7, 14, 2134, 4245, 10008, 25673.
31. Id. at 2134.

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32. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 712, 7476 (1996); RONALD DWORKIN, LIFES DOMINION: AN ARGUMENT
ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 12529 (1993).
33. BALKIN, LIVING ORIGINALISM, supra note 1, at 5964.
34. See SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE
BASIC QUESTIONS 7576 (2007).
35. See DWORKIN, LAWS EMPIRE, supra note 21, at 255.
36. Compare BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 10338 (developing a
theory of constitutional faith and redemption that acknowledges the evil and imperfection in the
constitution in practice) with JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE
CASE OF AUTONOMY 22027 (2006) (defending a Constitution-perfecting theory that
acknowledges imperfections, tragedies, and other misfortunes in the Constitution).
37. I reviewed the manuscript of Constitutional Redemption for Harvard University Press.
38. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 120; BALKIN, LIVING ORIGINALISM,
supra note 1, at 62.
39. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 262 n.27.
40. See generally SOTIRIOS A. BARBER, CONSTITUTIONAL FAILURE (2014); Sotirios A. Barber,
Constitutional Failure: Ultimately Attitudinal, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY
13 (Jeffrey K. Tulis & Stephen Macedo eds., 2010); see also RONALD DWORKIN, IS DEMOCRACY
POSSIBLE HERE?: PRINCIPLES FOR A NEW POLITICAL DEBATE (2006); Robin L. West,
Constitutional Scepticism, 72 BOSTON UNIVERSITY LAW REVIEW 765 (1992).
41. I found these speculations confirmed in Balkins reply at the conference. See Jack M. Balkin,
Nine Perspectives on Living Originalism, 2012 UNIVERSITY OF ILLINOIS LAW REVIEW 815.

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Balkins discussion of the difference between his and Dworkins accounts of principles in
Living Originalism, BALKIN, LIVING ORIGINALISM, supra note 1, at 30809, does not really
speak to the question whether Balkins method of text and principle is a moral reading.
42. Let me illustrate. Chapter 2 of Constitutional Redemption manifests an unacknowledged
incongruity between Lincoln and Balkin. Balkin uses Lincoln to set up the idea of faith in the
future and the Declaration of Independences promise of a democratic culture. BALKIN,
CONSTITUTIONAL REDEMPTION, supra note 5, at 1823. But Lincoln conceives that our narrative
is dedicated to certain substantive ends: Lincolns narrative has a known beginning and a known
end, all justified by the normative status of the end. Id. Balkin (the post-modernist that he is)
evidently cannot quite bring himself to conceive such a story; instead, his story is one of a
commitment to a democratic culture and we will just have to wait and see where it leads and
where it ends. Id. at 2332.
43. BALKIN, LIVING ORIGINALISM, supra note 1, at 7481.
44. See Balkin, Nine Perspectives on Living Originalism, supra note 41, at 854-56.
45. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 174225.
46. BALKIN, LIVING ORIGINALISM, supra note 1, at 260-63, 268-70.
47. Id. at 1718, 9399; BALKIN, CONSTITUTIONAL REDEMPTION, supra note 5, at 10, 6172, 94
98.
48. BALKIN, LIVING ORIGINALISM, supra note 1, at 328, 349 n.12.
49. Sanford Levinson, The Constitution in American Civil Religion, 1979 SUPREME COURT
REVIEW 123, 13944 (1979); LEVINSON, CONSTITUTIONAL FAITH, supra note 4, at 4244.
50. Sanford Levinson, The Specious Morality of the Law, HARPERS, May 1977, at 35, 99 n*.
51. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 10530 (1977).

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52. See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE 6971 (1985) (presenting courts as
the forum of principle as against the battleground of power politics).
53. Antonin Scalia, Originalism: The Lesser Evil, 57 UNIVERSITY OF CINCINNATI LAW REVIEW
849, 854, 861 (1989).
54. BALKIN, LIVING ORIGINALISM, supra note 1, at 10008.
55. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73-104
(1980); CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 12394 (1993); FLEMING, SECURING
CONSTITUTIONAL DEMOCRACY, supra note 36, at 61-85; DWORKIN, FREEDOMS LAW, supra note
32; DWORKIN, LIFES DOMINION, supra note 32.
56. BALKIN, LIVING ORIGINALISM, supra note 1, at 3549.
57. Id. at 5973.
58. Adam M. Samaha, Originalisms Expiration Date, 30 CARDOZO LAW REVIEW 1295, 1364
(2008).
59. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE
LAW 83 (1990).
60. Scalia, Originalism, supra note 53, at 852-56, 862-64.
61. DWORKIN, FREEDOMS LAW, supra note 32, at 287-305; DWORKIN, A MATTER OF PRINCIPLE,
supra note 52, at 33-57.
62. Brennan, Contemporary Ratification, supra note 17, at 437; DWORKIN, FREEDOMS LAW,
supra note 32, at 7-12, 72-76; Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism,
Scalia, Tribe, and Nerve, 65 FORDHAM LAW REVIEW 1249 (1997). See also GOODWIN LIU,
PAMELA S. KARLAN, & CHRISTOPHER H. SCHROEDER, KEEPING FAITH WITH THE CONSTITUTION
35-36 (2009).

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63. See BORK, TEMPTING OF AMERICA, supra note 59, at 187-240 (arguing that constitutional
theorists who are not narrow originalists advocate forms of revisionism that reject original
meaning and substitute other methods of constitutional interpretation); ANTONIN SCALIA, A
MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3747 (Amy Gutmann ed., 1997)
(same); Scalia, Originalism, supra note 53, at 849, 86264 (1989) (same).
64. Jack M. Balkin, The New Originalism and the Uses of History, 82 FORDHAM LAW REVIEW
641, 658 (2013) (summarizing the six modalities distinguished in PHILIP C. BOBBITT,
CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982)).
65. Id. (summarizing the five forms of argument distinguished in Richard H. Fallon, Jr., A
Constructivist Coherence Theory of Constitutional Interpretation, 100 HARVARD LAW REVIEW
1189 (1987)).
66. Id. at 659-60.
67. Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of
Original Meaning, 85 GEORGETOWN LAW JOURNAL 1765, 1767 (1997).
68. Id. at 181116 (discussing cases where original meaning, understanding, and history do not
necessarily entail originalism). I have praised Dorfs account in James E. Fleming, Original
Meaning Without Originalism, 85 GEORGETOWN LAW JOURNAL 1849 (1997).
69. See Dorf, Integrating Normative and Descriptive Constitutional Theory, supra note 67, at
1796800, 1805 (describing the textual, historical, and structural considerations in constitutional
interpretation).
70. Id. at 1800-16.
71. CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 127 (2001).
72. Id. at 110.

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73. Id. at 126.

74. Id. at 11, 64.
75. See, e.g., Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social
Movement Perspective 150 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 297,343 (2001).
76. See Martin S. Flaherty, Post-Originalism, 68 UNIVERSITY OF CHICAGO LAW REVIEW 1089,
1107-11 (2001).
77. See id. at 1092, 1107 (Call this post-originalist approach to constitutional history
experiential. Hamilton much earlier extolled the method, urging, Let experience, the least
fallible guide of human opinions, be appealed to for an answer to these [constitutional]
questions.).
78. BALKIN, LIVING ORIGINALISM, supra note 1, at 256-59; Balkin, The New Originalism and the
Uses of History, supra note 64. See also Dorf, Integrating Normative and Descriptive
Constitutional Theory, supra note 67.
79. ABNER S. GREENE, AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A
LIBERAL DEMOCRACY 192, 197, 201-06 (2012).

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CHAPTER SEVEN
Fidelity to Our Living Constitution: Honoring the Achievements of We the People
In recent years, Bruce Ackerman has become increasingly dismayed about the state of
our constitutional democracy as well as that of our constitutional theory. First came The Failure
of the Founding Fathers in 2007. There followed The Decline and Fall of the American Republic
in 2010. Now comes We the People: The Civil Rights Revolution in 2014. 1 Though this title does
not sound as ominous as his previous ones, Ackerman decries the Roberts Courts shattering
judicial betrayal of our living constitutions Civil Rights Revolution. Worse, he excoriates
Justice Scalias and Justice Thomass originalismas against his own living constitutionalism
as the judicial battering ram for obliterating the achievements of the twentieth century. 2 Those
were the achievements of We the People operating through the procedures of higher lawmaking
outside the formal amending procedures of Article V which Ackerman argues legitimated the
New Deal and the Civil Rights Revolution.
Furthermore, Ackerman criticizes scholars and judges for their narrow conception of the
canon of constitutional law, which fails to recognize these achievements as higher lawmaking
changing our Constitution instead of ordinary lawmaking. This narrow conception, he laments,
reduces We the People to Pygmies with respect to popular sovereignty compared with the
supposed Giants who walked the earth during the Founding and Reconstruction. While the
legal profession tell[s] a story of the decline and fall of popular sovereignty in America in the
twentieth century, Ackerman develops an account of higher lawmaking outside Article V that
preserves the very possibility of popular sovereignty in our time. 3
What remedies does Ackerman propose? He argues for a broader conception of the
constitutional canon: the higher law of the Constitution includes not only formally adopted

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provisions but also landmark statutes and judicial superprecedents, for example, those of the
New Deal and the Civil Rights Revolution. He also argues for a broader conception of popular
sovereignty: We the People manifest our will not only through the formal amending procedures
but also through the higher lawmaking procedures outside Article V that he elaborates. He puts
forward and substantiates six phases of higher lawmaking as having operated in the New Deal
and the Civil Rights Revolution: (1) signal (that consideration of constitutional change is
underway), (2) proposal, (3) triggering election, (4) mobilized elaboration, (5) ratifying election,
and (6) consolidation. He wants to establish the Civil Rights Revolution as a constitutional
revolutionnot merely some ordinary, though important, legislative and judicial developments.
The upshot would be that the landmark statutes and judicial superprecedents of the Civil Rights
Revolution may not be repealed or erased by ordinary lawmaking or ordinary judicial
decisions. Instead, repudiating its core changes and commitments would require going through
the elaborate six-phase process of higher lawmaking. If we fail to adopt his account, we risk
forsaking fidelity to our living constitution and getting lost in an originalist fog of ancestor
worship. 4
We the People: The Civil Rights Revolution is a magisterial and magnificent third volume
of Ackermans We the People project, which began with Volume I: Foundations in 1991,
followed by Volume II: Transformations in 1998, and will be continued by Volume IV:
Interpretations in the future. 5 Ackerman offers stinging criticisms of conventional forms of
originalism. And he makes cogent advances over previous versions of living constitutionalism.
Most importantly, he exhorts us to fidelity to our living constitution: to preserve and extend the
commitments hammered out through the processes of popular sovereignty during the Civil
Rights Revolution: for example, the anti-humiliation principle of Brown v. Board of Education,

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narrowing the state action requirement, pruning back of state autonomy limits on national power
in order to protect fundamental rights like voting, and the expansion of the commerce power to
promote national goods. And he scolds originalists who reject those commitmentsfor example,
Scalia, Thomas, and the Roberts Court more generallyfor their erasure of the achievements
of the Civil Rights Revolution. For their shattering judicial betrayal of We the Peoples
products of popular sovereignty: 6 constitutional changes wrought by the Supreme Court,
President, and Congress working through a collaborative constitutionalism (or coordinate
constitutionalism) to secure equal citizenship for all. 7
In this book, I reject all forms of originalism and recast the best forms of living
constitutionalism. I argue that the moral reading, not any version of originalism or living
constitutionalism, is the most faithful to the Constitutions commitments. Below I shall interpret
or reconstruct Ackermans living constitutionalism as a moral reading of the Constitution.
Ackermans theory is more grounded in fit with our constitutional history and practice, and more
rooted in popular sovereignty, than Dworkins own moral reading. But Ackermans is
nonetheless a moral reading in which faithful interpretation requires normative judgments about
the best understanding of our constitutional commitments as we have built them out over time.
Ackermans theory is also a moral reading in the sense that he believes it is necessary to adopt
and apply it in order to make the Constitution the best it can be (to recall Dworkins famous
formulation discussed in Chapter 4) 8 or redeem its promises (to invoke Jack Balkins
formulation discussed in Chapter 6). 9
I. ACKERMANS CONCEPTION OF FIDELITY AS QUESTING FOR INTERGENERATIONAL SYNTHESIS
AND HONORING OUR LIVING CONSTITUTION

In Foundations and Transformations, Ackerman developed his well-known theory of

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constitutional change outside the formal amending procedures of Article V. He exhorted us to
break up the monopoly that Article V of the Constitution has held on our vision of constitutional
amendment. He urged us to move beyond Article V and to embrace a pluralist understanding
of the sources of higher lawmaking. 10 Only by doing so, he argued, would we be able to
comprehend the processes of unconventional adaptation outside Article V whereby We the
People have transformed the Constitution through the Founding, Reconstruction, and New Deal.
Nothing less, Ackerman admonished us, would preserve and realize both the possibility of
popular sovereignty and the possibility of interpretation under our Constitution.11
In developing this theory of constitutional change, Ackerman implicitly elaborated a
theory of constitutional fidelity. In putting forward this theory of fidelity and change, he has tried
to answer the most common objections to living constitutionalism: (1) that it is not faithful to the
Constitution; (2) that it is undemocratic in the sense that it involves judicial updating of the
Constitution in derogation of popular sovereignty; and (3) that it entrusts judges with a
responsibility that is not interpretation, but rather updating or improving.
As stated in Chapter 1, conventional originalists such as Robert Bork and Antonin Scalia
have asserted a monopoly on concern for fidelity in constitutional interpretation, claiming that
fidelity requires following the rules laid down by, or giving effect to the relatively specific
original understandings or meanings of, the framers and ratifiers. 12 One aim of the Fordham
symposium on Fidelity in Constitutional Theory 13 was to challenge the conventional
originalists claim to a monopoly on fidelity by featuring several competing conceptions of
fidelity that were decidedly not conventional originalist conceptions. One of those conceptions
was Ackermans understanding of fidelity as questing for intergenerational synthesis across
the three constitutional regimes or moments of the Founding, Reconstruction, and the New

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Deal. 14 At the time, I observed that Ackerman had taken the tack of attempting to beat
conventional originalists at their own game: he advanced fidelity as synthesis as a broad form of
originalism that was superioras a conception of originalismto conventional originalism. 15
In this chapter, I shall assess the progress that Ackerman has made in this project of
developing a conception of fidelity that is superior to those of conventional originalists. Again,
Ackerman urges us to aspire to fidelity to our living Constitution. On his view, originalists who
urge fidelity to the original meanings of the Constitution of 1787 (the Founding) or even those of
1868 (Reconstruction) are betraying our living Constitution. We need not only to quest for
intergenerational synthesis with the past constitutional moments or regimes, 16 but also to
honor the fundamental changes that have occurred or are occurring outside Article V through
the procedures of popular sovereignty, most notably, the Civil Rights Revolution or Second
Reconstruction. 17 Thus does he attempt to turn the tablesthe tables of fidelityupon the
conventional originalists. He paints them with the vices of betrayal, erasure, or rewritingthe
very vices with which they typically tar living constitutionalists.
The aspiration to fidelity, as I have argued in Chapter 3, raises two fundamental
questions: (1) Fidelity to what? and (2) What is fidelity? The short answer to the firstfidelity to
the Constitutionposes a further question: What is the Constitution? The short answer to the
secondbeing faithful to the Constitution in interpreting itleads to another question: How
should the Constitution be interpreted? Ackerman recognizes that these questions of What and
How are the central questions of constitutional fidelity. He writes: Once we get clearer about
what we should be interpreting, the debate over how to interpret the canon will take a different
shape. He argues that we need to build a broader canon based on the truth of the entire
American experience. Again, it would include not only the formally adopted provisions but also

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landmark statutes and judicial superprecedents. Ackerman suggests that thus broadening the
canon promises to break the impasse over interpretation between originalists and living
constitutionalists. He goes so far as to say that a redefined canon would create strange allies in
the ongoing conversation that is our Constitution. Or, that adversaries at least would be talking
to one another. 18
This formulation seems to presuppose that the impasse between originalists and living
constitutionalists concerns How to interpret the Constitution, and that introducing a broader
conception of What the Constitution is will break that impasse. I am not so hopeful. I believe that
the basic disagreements between these views are as much over the question What is the
Constitution as over the question How to interpret it. Originalism is one conception of what the
constitutional canon includes. Living constitutionalism is a fundamentally different conception.
For this reason, originalists are going to resist his attempt to build a broader canon based on the
truth of the entire American experience. 19 They are going to deny that what Ackerman views as
landmark statutes and superprecedents are part of the canon of constitutional law. Indeed, they
are going to argue that much of the experience Ackerman celebrates as the great achievements of
the New Deal and the Civil Rights Revolution is at best constitutionally gratuitous or at worst
constitutionally forbidden. The majority opinion in Shelby County (Voting Rights Act) and the
dissents in Sebelius (Affordable Care Act) and Windsor (Defense of Marriage Act) are proof of
that. 20 Such originalists are going to resist talking to the living constitutionalists like
Ackerman, if you will.
Relatedly, at one point, Ackerman suggests that his disagreement with Scalia is not over
originalism but over the constitutional canon and Article V exclusivity. 21 But Scalia-style
originalism is a conception of Article V exclusivitya conception of What the Constitution is.

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Hence, Ackermans disagreement with Scalia over Article V exclusivity is a disagreement over
originalism.
II. IS ACKERMAN AN ORIGINALIST OR A LIVING CONSTITUTIONALIST?
As noted in Chapters 2 and 3, in thinking about fidelity and change in constitutional
interpretation, many have framed the basic choice as being between originalism and living
constitutionalism. This formulation puts originalism on the side of fidelity and living
constitutionalism on the side of change. In this vein, we might ask, Is Ackerman an originalist
or a living constitutionalist? We also might ask whether his theory is an advance over available
versions of originalism or living constitutionalism?
It would seem that Ackerman is a proud, avowed living constitutionalist. After all, he
titled his Holmes Lectureswhich he reworks in Chapters 1-4 of the bookThe Living
Constitution.22 He painstakingly develops a conception of the living constitution, with six
phases for constitutional change outside the formal procedures of Article V. Furthermore, a
recurring refrain throughout the Lectures and the book is to celebrate the dynamics of the higher
lawmaking system and the commitments of living constitutionalism hammered out over time by
the Supreme Court in collaboration with the President and Congress.
What is more, Ackerman is second to none in blasting Scalias and Thomass
originalismas a judicial battering ram against the achievements of the twentieth century,
including the New Deal and Civil Rights Revolutionthe achievements, that is, of the living
constitution as Ackerman conceives it. And he warns against betrayal of the living constitution
through getting lost in a fog of ancestor worship (presumably some form of originalism). He
also chastises originalists for their assumption that constitutional creativity and changehigher
lawmakingwas done by the Giants at the Founding and Reconstruction, and that We the

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People have been Pygmies ever since, not accomplishing much rising to the level of higher
lawmaking. He castigates the originalists like Scalia and Thomas and the Roberts Court more
generally for trying to erase or betray the achievements of the New Deal and the Civil Rights
Revolution, the greatest achievements of our system of popular sovereignty/higher lawmaking
outside the formal procedures of Article V. 23
Yet, Ackerman says on page 329, at the end of his book: I am the originalist, not [Scalia
or Thomas]. 24 In Chapter 1, I noted that some have asked, Are we all originalists now? and
answered Yes. 25 Indeed, they might find support for that answer in the phenomenon of a living
constitutionalist like Ackerman clothing his theory in the garb of originalism. Or claiming to be
the [real] originalist. For 329 pages, Ackerman had demonstrated the development of a living
constitution. At every turn, he had shown that the Civil Rights Revolution was not built from
originalism (whether through a quest for fidelity to the original meanings of the Founding or to
those of Reconstruction). And he had criticized originalists for betraying or erasing the
achievements of the living constitution: what We the People have hammered out through the
procedures of popular sovereignty outside Article V. Moreover, he had applauded the leading
cases of the Civil Rights Revolutionfor example, Brown and Loving v. Virginiafor being
avowedly anti-originalist. 26 Finally, he went on to argue that the Constitution is a work of many
generations, 27 not just the Founding or Reconstruction generations.
Thus, Ackerman sounds a false note when he says: I am the originalist, not [Scalia or
Thomas]. He certainly is not a conventional originalist. His scorn for the originalism of Scalia
and Thomaswho are at war with the twentieth century 28 and who accordingly would erase or
obliterate the great achievements of our constitutional practice of popular sovereignlymatches
that of moral readers like Dworkin and me. I have two further observations about Ackermans

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discordant bow to originalism. One, as argued in Chapter 1, these moves show the grip of the
originalist premise on the minds of even the most avowed living constitutionalists: the premise
or assumption that the only way to profess fidelity to the Constitution, rather than to betray it, is
through originalism, if only we could articulate the best or real form of originalism. Two, the
better way for Ackerman to make his point is simply to say that he is more faithful to the
Constitution, properly understood as (1) including the constitutional commitments we have built
out (as Balkin says 29) or hammered out (in Ackermans formulation 30) through our practice of
living constitutionalism (which originalists reject), rather than as (2) including merely the
relatively specific original meanings and expectations of the historical framers and ratifiers
(which originalists insist exhausts the constitutional canon).
To recapitulate: Ackerman is developing a living constitutionalismwith a broader
canon, as he says, or a broader conception of What and How, as I would put it, than conventional
originalists hold. And he is claiming to be more faithful to the Constitution (rightly understood as
including the landmark statutes and superprecedents like those of the New Deal and Civil Rights
Revolution) than they are. The originalists would say that we have an obligation to be faithful to
the relatively concrete original meanings of the Constitution, and thus to erase any statutes or
precedents that purport to have changed those meanings: to wit, the very achievements
celebrated by Ackermans living constitutionalism.
III. ACKERMANS CONTRIBUTIONS TO THE TRADITION OF LIVING CONSTITUTIONALISM
To this point, I have argued that Ackerman is better understood as a living
constitutionalist, not an originalist. Next, I shall ask, what does he contribute to the tradition of
living constitutionalism? I hasten to observe that living constitutionalism today is not your
mothers or fathers living constitutionalism. Once upon a time, the living constitution was a

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hackneyed idea. Proponents of living constitutionalism characteristically were pragmatic,
instrumentalist, and forward-looking in their approach to constitutional interpretation and, as
such, tended to be anti-fidelity. Though, truth be told, most living constitutionalists who
supposedly think this way are fabrications created in the minds of originalists like Chief Justice
Rehnquist (see his The Notion of a Living Constitution) and Justice Scalia (see his discussion
of the Living Constitution in his A Matter of Interpretation: Federal Courts and the Law 31).
Disparaging the tradition of living constitutionalism as a mess, Scalia wrote in
Originalism: The Lesser Evil in 1989 that the only thing the motley group of living
constitutionalists can agree upon is their rejection of originalism. But, he continued: You cant
beat somebody with nobody. 32 Or, as others have put it: It takes a theory to beat a theory. 33
He asserted that living constitutionalism is not a viable theory to beat originalism (in whatever
form). Furthermore, originalists like Bork and Scalia (and, more recently, John McGinnis and
Michael Rappaport 34) criticize hackneyed versions of living constitutionalism as nothing more
than judicial updating of the Constitution, an illegitimate alternative to the legitimate method
for constitutional change through the formal procedures of Article V. They object: (1) that such
living constitutionalism does not involve judicial interpretation (but updating) and (2) that it is
not consistent with popular sovereignty (but is a judicial end-run around Article Vs
requirements for the expression of popular sovereignty through formal constitutional
amendments).
I am a longstanding critic of both originalism and living constitutionalism. But I want
fairly to assess the state of living constitutionalism today. Living constitutionalism is far more
sophisticated today than it was when Scalia wrote in 1989. David Strauss and Bruce Ackerman
have given living constitutionalism far more defensible formulations that respond to the two

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criticisms just noted: (1) Strauss assimilates it to ordinary common law interpretation and (2)
Ackerman shows it to be a practice of popular sovereignty. (And Jack Balkin has synthesized
living constitutionalism with an abstract originalism or moral reading.)
As discussed in Chapter 5, Strauss has framed living constitutionalism as common law
constitutional interpretation rather than simply a forward-looking program for changing or
updating the Constitution. He convincingly shows the extent to which (1) common law
constitutional interpretation rather than originalism has been our practice; (2) common law
constitutional interpretation provides better constraints upon judicial decision making than does
originalism; and (3) common law constitutional interpretation rather than the formal procedures
of Article V has been our procedure for change. 35 He gives living constitutionalism a grounding,
rigor, and structure that it previously lacked.
Ackerman also has developed a form of living constitutionalism that is a compelling
alternative to originalism and a sophisticated advance over traditional forms of living
constitutionalism. Most importantly, his account of the living constitution is not court-centered,
but is regime-centered: he constructs an understanding of constitutional change through a
collaborative constitutionalism engaging not only the Supreme Court but also the President and
Congress in hammering out our constitutional commitments in the regimes of the Founding,
Reconstruction, and the New Deal (and now the Civil Rights Revolution). As such, Ackermans
theory offers an effective retort to originalist complaints about living constitutionalism as being
nothing more than judicial updating of the Constitution. Also, he develops an account of
popular sovereignty that is superior to that of the originalists: he shows that the New Deal-Civil
Rights Regimes constitutional practice is not problematically undemocratic: it is not a violation
of popular sovereignty but a fulfillment of it! Ackerman emphasizes the popular sovereignty

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credentials of living constitutionalist higher lawmaking. Indeed, he presents Article V as an
archaic method of higher lawmaking, inferior in popular sovereignty credentials to the modern
collaborative model of higher lawmaking engaging the President, Congress, and Supreme Court
working together. 36
Needless to say, Scalia (not to mention McGinnis and Rappaport) would deny that what
Ackerman describes is higher lawmaking. They likely would reduce all of these landmark
statutes to ordinary lawmaking and superprecedents to judicial updating. They would argue
that the Supreme Court is justified in rejecting much of what Ackerman regards as the great
achievements of the New Deal and Civil Rights Movement, made in the name of We the People,
as unconstitutional. Ironically, those who object to judicial updating of the Constitution and
judicial activism are in this respect the most court-centered and most judicial activist of all
the originalists who would have courts throw out what Ackerman celebrates as the achievements
of popular sovereignty in the name of their formal, court-centered understanding of the
constitutional canon and of fidelity versus change.
I want to observe a similarity between Strausss and Ackermans versions of living
constitutionalism and then some differences. The major similarity is that both downplay the
relevance of formal constitutional amendments in their accounts of constitutional change. But
they differ in their conceptions of the engines of change. Strauss presents living constitutionalism
as common law constitutional interpretation by judges. When McGinnis and Rappaport decry
judicial updating of the Constitution, they presumably have versions of living
constitutionalism like Strausss in mind.
Ackermans living constitutionalism, by contrast, is emphatically not a court-centered
model of judicial updating of the Constitution. His collaborative model shows the dialogue of

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construction between the Supreme Court, on the one hand, and the President and Congress (and
ultimately the people, including through social movements), on the other. Through the arduous
six phases of higher lawmaking, his theory claims the authority to speak in the name of We the
People. It claims to be the expression of popular sovereignty, not judicial supremacy. 37 For this
reason, Ackermans theory of living constitutionalism may have advantages over Strausss
theory. Ackermans view provides an antidote not only to court-centeredness but also to idolatry
of the Warren Court: The heroes of his story of the Civil Rights Revolution are Presidents
Lyndon Johnson and Richard Nixon (it turns out that Neil Young was right, even Richard
Nixon has got soul 38), Martin Luther King, Jr., and Senator Everett Dirksen. Moreover,
Ackerman exposes the conservatism of the Warren Court: for example, its skittishness about
abolishing the requirement of state action under the Fourteenth Amendment and its minimalism
in cobbling together majorities through placating dissenters and avoiding forthrightly elaborating
the anti-humiliation principle of Brown). 39
Other proponents of a living constitution have argued that the Supreme Court is not as
counter-majoritarian as sometimes feared, but rather stays in touch with the will of the
people, to invoke the title of Barry Friedmans well-known book. 40 But unlike Friedman, who
does not give an adequate account of how the will of the people actually gets expressed in
constitutional law, Ackerman articulates and substantiates a six-step framework through which
constitutional changes occur and shows how the will of We the People comes to be expressed in
the canon of constitutional law. Through Ackermans living constitutionalism, it is plausible to
say that We the People have proposed and ratified the constitutional changes, and that those
changes are not just judicial updating of the Constitution (not even judicial updating with an ear
to the ground concerning the will of the people).

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Furthermore, Ackerman and Strauss have different views concerning why formal
constitutional amendments are largely irrelevant in our practice of constitutional change. For
Strauss, amendments are not relevant because the Constitution already contains general
principles that courts can elaborate over time through common law constitutional
interpretation. 41 The Constitution, properly interpreted, already contains the principles that have
been the subject of formally adopted amendments like the Twenty-Fourths abolition of the poll
tax in federal elections and of formally proposed amendments like the Equal Rights Amendment.
We dont need these amendments because we already have the general constitutional
commitment to equal protection.
For Ackerman, by contrast, the irrelevance of constitutional amendments stems from our
modern practice of popular sovereignty. Changes come about through the six-step higher
lawmaking process in the name of We the People. Ackerman actually goes so far as to claim that
changes brought about through this process have superior democratic credentials to Article V
amendments. He is at pains to argue that what he calls the modern separation of powers model
of collaborative constitutionalism among the Supreme Court, President, and Congress in
hammering out our constitutional commitmentsis superior to what he calls Article Vs archaic
federalism modelrequiring ratification by three-fourths of the states. 42 Strauss, unlike
Ackerman, labors under no compulsion to frame the changes of living constitutionalism as
having been brought about through popular sovereignty or in the name of We the People.
Finally, Ackermans and Strausss versions of living constitutionalism differ
fundamentally in their attitudes toward fidelity in constitutional interpretation. Living
constitutionalists traditionally have not made fidelity a virtue. They have celebrated change. In
this spirit, Strauss is dubious about the aspiration to fidelity. 43 Ackerman, like Balkin, is quite

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different: both stress the virtue of fidelity. 44 They recognize that living constitutionalists should
not forfeit the contest over fidelity to the originalists but rather should develop alternative,
superior conceptions of fidelity. Balkin argues that we should quest for fidelity to the original
meanings abstractly conceivedthe abstract moral principles of the Constitution, not the
relatively specific original meanings and expectations of the historical framers and ratifiers. He
conceives fidelity as redemption of the promises of our abstract constitutional commitments. 45
By contrast, Ackerman contends that we should maintain fidelity to our living constitution (to
recall my title). Again, he faults Scalia, Thomas, and the Roberts Court generally for their
betrayal and erasure of the achievements of the New Deal and the Civil Rights Revolution.
Ackerman contends that these changes may not be undone legitimately through ordinary
lawmaking and ordinary judicial decisions.
On the one hand, Ackerman grants that constitutional change should be hardits not
ordinary lawmakingits just that it should not be hard in the way that Article V, with its
federalism model, makes it. 46 Instead, constitutional change should be hard in the sense that it
must pass through his six-stage process, as the New Deal and the Civil Rights Revolution have
done. On the other hand, he suggests that constitutional change to repeal the New Deal or Civil
Rights Revolution should be harder than erasure or betrayal by ordinary lawmaking or ordinary
judicial decisions by the Roberts Court (without going through the six-step process). 47
In sum, Ackermans theory of living constitutionalism is superior to hackneyed versions
of living constitutionalism as well as to originalism.
IV. DO WE NEED ACKERMANS FRAMEWORK OF LIVING CONSTITUTIONALISM/HIGHER
LAWMAKING?
I can imagine a sympathetic reader saying, Yes, Ackermans account of the principles of

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the New Deal and the Civil Rights Revolution is compelling. It is just that we dont need his
complex six-phase apparatus of higher lawmaking outside the formal amending procedures of
Article V to justify and articulate these principles. We can just reframe his analysis as a
compelling account of the interpretation, construction, and redemption of the abstract
constitutional commitments of the Fourteenth Amendment, together with those of the Thirteenth
and Fifteenth Amendments. I can imagine Dworkin taking this view. Balkin basically does take
this view. 48 I can also imagine Strauss doing so. I took such a view in prior work assessing
Ackermans previous two volumes. 49
Ackerman likely would view this way of putting things as too court-centered. He wants
to insist that his theory instead stems from a collaborative model of the Supreme Court working
with the President and Congress to hammer out a Second Reconstruction in the name of We the
People. And so, he would insist that we do need his apparatus, not just elaboration of a moral
reading of the Constitution as embodying abstract commitments to equal protection and the like
and redemption of those commitments.
But I have a number of responses. One, a moral reading like that of Dworkin or Balkin
does not exclude Congress and the President from taking the Constitution seriously outside the
Courts. A moral reading is not inherently court-loving or legislature-disparaging (irrespective of
what Dworkin may have said on occasion to encourage that view 50). Two, relatedly, a moral
reading does not preclude what Balkin calls construction (or building out the commitments
of the Constitution) 51 or indeed what Ackerman calls a collaborative model of the President and
Congress working together with the Supreme Court in hammering out our commitments. 52
Three, Ackerman speaks of redeeming our constitutional commitments: 53 that sounds like the
Constitution already embodies abstract commitments to principles such as equal protection

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which have to be hammered out or built out over time. Even on Ackermans account, it seems
like the Civil Rights Revolution or Second Reconstruction is redeeming or realizing the
aspirations of the First Reconstruction. Dworkin and I would say that we are working out a better
understanding of our commitments to equal protection, and Balkin would say that we are
redeeming its promises. These formulations bespeak moral readings of the Constitution.
Ackerman, in offering his complex framework of popular sovereignty, is insisting that We the
People have changed our constitutional commitments through the Civil Rights Revolution and
that we now should be faithful to or honor those changed commitments.
Whats the difference between these formulations? What turns on the difference?
Ackerman wants to present the Civil Rights Revolution as a product of popular sovereigntyWe
the Peoplenot as a product of judicial elaboration of constitutional commitmentsWe the
Judges. And not as an exercise in political philosophy in the seminar room or in the courts (as the
forum of principle). 54 Ackerman wants to deny that our constitutional commitments were all
there in the original meanings of the Fourteenth Amendment from the beginningas the work of
the Giants who walked the earth during the First Reconstruction in the nineteenth century. 55
He wants to insist that popular sovereignty has not perish[ed] from the face of the earth, to
invoke Lincoln, 56 but has thrived in the twentieth centurys New Deal and Civil Rights
Revolution.
Thus, Ackerman wants to show that popular sovereignty is alive and well. It operates, not
as originalists like Scalia contemplate, in ordinary lawmaking concerning things the Constitution
says nothing about or leaves open, 57 but instead in the very process of working out our deepest
constitutional commitments, as higher lawmaking in the name of We the People. When it comes
to higher lawmaking in our time, We the People are not the Pygmies to which the originalists

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would reduce us.
And so, Ackerman would retort, yes, we do need his framework of living
constitutionalism/higher lawmaking. We need it to protect us against betrayal and erasure: for we
can argue that we really have amended the Constitution and now we should be faithful to that
changed Constitution, not just the Founding Constitution or the Reconstruction Constitution. But
will his understanding really protect us against such betrayal or erasure?
As Ackerman frames the matter, the originalist enemies of the achievements of the
twentieth century do not understand our constitutional practice: that we have a broad
constitutional canon and that through a collaborative constitutionalism the Supreme Court,
President, and Congress have achieved in the Civil Rights Revolution the functional equivalent
of a constitutional amendment in the name of We the People. Because of this failure of
understanding, the originalists decry the achievements of our constitutional practice as
illegitimate judicial updating of the Constitution.
But as I see the matter, these originalists reject Ackermans understanding of our
constitutional practice and his broad understanding of the constitutional canon. They view what
he sees as achievements as instead rot or rewriting. 58 I daresay that the main reason is that
they have a different moral reading, a different substantive vision of our Constitution. They are
going to fight for their substantive vision no matter what Ackerman shows us about our actual
constitutional practice.
In sum, we have a constitutional war going on: a war of competing substantive visions of
the Constitution. What Ackerman sees as fidelity to our living constitution, conservative
originalists see as infidelity to the Constitution, more narrowly conceived as what they hold to be
its original meanings. What Ackerman sees as realizing our constitutional commitmentsthe

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great achievements of the twentieth centurythey see as rewriting, repudiating, or destroying
them. What Ackerman thinks We the People have repudiated through the New Deal and the Civil
Rights Revolution (for example, the older understandings of federalism, the commerce power,
state action, and the like), they think We the Judges have an obligation to restore. And so it goes,
on and on, without end. Ackermans living constitutionalism will not resolve the impasse
between originalism and living constitutionalism, and will not usher in a new era in which
originalists and living constitutionalists are talking to one another.
Finally, I want to address Ackermans implicit claim that his living constitutionwith its
account of the great achievements of the Civil Rights Revolution as having amended the
Constitution in the name of We the Peoplewill provide bulwarks against betrayal or erasure by
the Roberts Court. Again, Ackerman wants to establish the Civil Rights Revolution as a
constitutional revolutionnot merely some ordinary, though important, statutory developments
and judicial decisions. The upshot is that the Civil Rights Revolution may not be repealed or
erased by ordinary lawmaking or ordinary judicial decisions. Instead, a President, Congress, or
Supreme Court determined to repeal it would have to go through the elaborate six-stage process
of higher lawmaking. Thus, his theory of fidelity to the living constitution provides greater
bulwarks against betrayal or erasure than do other theories that would permit such repeal.
But, if I learned anything from reading Ackermans book (as well as the two previous
volumes), it is that there is no sure bulwark that can preserve progressive changes from erasure
by determined defenders of older constitutional orders. Not even changes through the formal
amending procedures of Article V: just consider Ackermans chilling analysis of how the
Supreme Court promptly erased the First Reconstruction in Slaughter-House Cases and Civil
Rights Cases. 59 Thus, Ackerman acknowledges that not even formal amendments to the

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Constitution ostensibly adopted through Article V are secure against erasure or betrayal. Why
should we expect anything different with respect to informal, functional equivalents of
constitutional amendments outside Article V through his stages of higher lawmaking: even now
the Roberts Court is erasing the progressive changes wrought by the New Deal and the Civil
Rights Revolution.
Thus, even if the Civil Rights Revolution did rise to the level of higher lawmaking
changing the Constitution, that would not be a sufficient bulwark to preserve change and prevent
betrayalany more than the Reconstruction Amendments were a sufficient bulwark to realize
change and avoid erasure. Neither formal amendment nor the functional equivalent thereof can
protect us against erasure or betrayal when movement judges are determined to obliterate the
achievements of a constitutional regime. Again, what Ackerman presents as achievements, they
view as rot or rewriting. They want, as the slogans go, to take their Constitution and their country
back. They will do this by invalidating the statutes, overruling the precedents, reinterpreting the
amendments, or reinterpreting the precedents like Brown (as embodying a commitment to a
color-blind Constitution instead of an anti-caste principle). They will deny that the new
developments Ackerman calls achievementsfor example, the withering away of the
requirement of state action and the idea that state autonomy limits national powersreally
changed anything. Or, if those developments did, they are unconstitutional and must be
repudiated. As Randy Barnett put it, he aims to restor[e] the lost constitution. 60
Balkin, Dworkin, and I appreciate this about the struggle with conservative originalists.
We understand that we have to engage in substantive moral arguments about what interpretations
best fit and justify our constitutional text, history, tradition, and practice: to elaborate a moral
reading of the Constitution. Ackerman implicitly understands this, but in places he presents

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himself as a living constitutionalist historicist who is simply putting forward a historical
narrative that fits the historical facts and who, as such, seems to resist the moral reading.
V. RECASTING ACKERMANS LIVING CONSTITUTIONALISM
AS A MORAL READING OF THE CONSTITUTION

As observed in Chapters 4 and 6, it is commonplace for broad originalists and living

constitutionalists to pit originalism against the moral reading and then to say that they are closer
to originalists than to moral readers. Balkin did this in defending his living originalism. So
does Ackerman in defending his living constitutionalism. On the one hand, Ackerman criticizes
conventional originalists like Scalia. On the other hand, he distances himself from moral readers
like Dworkin. Then he says he is closer to Justice Scalia than to Professor Ronald Dworkin. 61
Yet clearly Ackerman is much closer to Dworkin than to Scalia. His account of the substantive
principles of the Civil Rights Revolution (even if not his full apparatus of popular sovereignty)
would be largely embraced by moral readers like Dworkin and completely rejected by
originalists like Scalia.
Why does Ackerman say he is closer to Scalia than to Dworkin? More generally, why
does he resist the moral reading? In Chapter 4, I have suggested several reasons, including: the
turn to fit and history and the democratic turn in liberal constitutional theory. By the turn to
fit and history, I mean that he presents his theory as rooted in historicism rather than in
normative political philosophy. 62 In distancing himself from Dworkin, and saying he is closer to
Scalia, Ackerman clearly aims to establish his historicist credentialsthe historical fit of his
living constitutionalist enterprise with our constitutional practicewhile implying that moral
readers like Dworkin are ahistorical philosophers who read their own vision of political utopia
into the Constitution. By the democratic turn, I mean that he presents his theory as the

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expression of popular sovereignty rather than of courts articulating abstract commitments in the
forum of principle. In criticizing Dworkins idea that courts are the forum of principle, 63 and
in defending a collaborative constitutionalism, Ackerman plainly aims to demonstrate his
democratic credentialswhile suggesting that moral readers like Dworkin are court-lovers who
disparage our practice of popular sovereignty.
In both instances, I believe Ackerman is using Dworkin as a rhetorical foil to deflect
common criticisms of liberal constitutional theory in general and living constitutionalism in
particular. In the turn to fit and history, he is saying that he looks to our history and practice to
decide what our constitutional commitments are, not to abstract normative liberal political
philosophy. He is implying that Dworkin did the latter. He is saying: If you think I am reading
normative liberal political philosophy into our Constitution, youve got the wrong person. You
want Dworkin, not me. He thus stresses that his account is historicist, not philosophical: that is
what he means when he says he is closer to Scalia than to Dworkin. In the democratic turn,
Ackerman is saying that he believes in a collaborative model of popular sovereignty, whereby
the President, Congress, and the Supreme Court ultimately speak in the name of We the People,
not a court-centered forum of principle that merely speaks in the name of We the Judges. He
also is saying: If you think I have a court-centered theory of living constitutionalism that
advocates judicial updating of the Constitution, youve got the wrong person. That person is
Dworkin, not me. In this way, he emphasizes that the democratic/popular sovereignty credentials
of his theory are superior to those of Dworkins moral reading (and, for that matter, Scalias
originalism).
But we should not be fooled into thinking that Ackerman is just a historicist who is
unpacking the commitments that happened to be adopted by a certain people at a certain time and

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in a certain place, working through certain procedures that he has described in a legal positivist
spirit. In the New Deal or the Civil Rights Revolution, We the People were not discovering or
elaborating historicist facts about the original meanings of the Constitution or the developments
of our constitutional practice. We the People were building out our constitutional commitments
through normative judgments in the crucible of experience. What was going on in hammering
out these functional equivalents of a constitutional amendment other than the realization of a
moral reading of the Constitutions commitments? Surely not the realization of historicist facts
concerning original meanings or political and doctrinal developments.
Putting aside the rhetorical maneuvering regarding Scalia and Dworkin, Ackerman is
arguing that his account better fits our constitutional practice, as it has developed over time, than
do competing accounts. He also is saying that it offers a normatively superior understanding both
of popular sovereignty and of our substantive constitutional commitments themselves. To put it
in Dworkins famous formulation of the two dimensions of the best interpretation: 64 Ackerman is
claiming that his account provides the best fit with and justification of our constitutional practice.
That is why I have argued for recasting his living constitutionalism as a moral reading of the
Constitution. Again, through his rhetorical move of claiming to be closer to Scalia than to
Dworkin, Ackerman demonstrates that even some living constitutionalist critics of originalism
are in the grip of the originalist premisethe premise or assumption that the best
understanding of fidelity (here, to our constitutional practice, not to original meanings) is
necessarily originalist. But, I have argued, the aspiration to fidelity to our living constitution as
Ackerman conceives it is the aspiration of a moral reading, not an originalism.
These rhetorical strategies and deflections are certainly understandable. Nonetheless, I
shall suggest that Ackermans living constitutionalism is illuminatingly understood as a moral

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reading of the Constitution (in a general sense, if not in Dworkins specific sense), not merely a
historicist account of our constitutional development.
I mean a moral reading in two basic senses. First, Ackermans theory is a moral reading
in the sense that, under it, faithful interpretation requires normative judgments about the best
understanding of our constitutional commitments as we have built them out over time. Ackerman
conceives the Constitution as a scheme of normative commitments, not historicist facts. This
comes out most clearly in his criticism of Justice Whites opinion in McLaughlin v. Florida for
stating that the meaning and central purpose of the Equal Protection Clause is a historical
fact. 65 Although Ackerman says his account is historicist, he is making an argument about what
normative constitutional commitments were hammered out in the Civil Rights Revolution. He
clearly understands that those commitments are not simply discovered as historicist facts through
historical research. To decide what they are, Ackerman has to make interpretations requiring
normative judgments. He also makes clear that interpreting and applying those commitments
redeeming them, as he sometimes saysrequires normative judgments, not just marshaling
historical facts.
Ackerman half disguises this point in speaking of Chief Justice Warrens opinion in
Brown as embodying a sociological jurisprudence or requiring situation sensethat it
requires making common sense judgments about whether real world practices in certain contexts
manifest institutionalized humiliation so as to deny equal protection. 66 I say, half disguises,
because sociological jurisprudence may not sound like normative moral judgments. For that
matter, situation sense or common sense may not sound like normative moral judgments
either. To be sure, they are not the normative moral judgments of abstract political philosophy.
But they are normative moral judgments about the social meaning of laws and practices

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whether they embody institutionalized humiliation and deny dignity. More generally, elaboration
of Browns anti-humiliation principle and application of its logic of spheres 67 will require
normative moral judgments concerning what practices, in what contexts, humiliate and deny
dignity. Moreover, his development of the meaning of popular sovereignty in our constitutional
practice will require normative judgments. Indeed, all of Ackermans judgments about what
holdings are faithful to the New Deal and Civil Rights Revolution and what holdings betray them
will require normative judgments. None of these matters can be decided as a matter of historicist
fact. In short, Ackermans living constitutionalism will require complex normative judgments;
accordingly, it will be a moral reading of the Constitution.
Second, Ackermans theory is also a moral reading in the sense that he believes we must
adopt and apply it if we are to make the Constitution the best it can be (to recall Dworkins
famous formulation) or redeem its promises (to invoke Balkins formulation). This may be an
argument for what Cass Sunstein has called second-order perfectionism as distinguished from
first-order perfectionism, but it is nonetheless a perfectionist argument. 68 Ackerman contends
that the possibility of popular sovereignty under our Constitution depends upon our accepting
his theory of unconventional adaptation and transformation outside Article V. 69
What does he mean by this claim? He seems to be making both a justificatory claim and a
hortatory claim. The justificatory claim is that our Constitutionnotwithstanding the text of
Article V in the Constitution itselfpresupposes a theory of popular sovereignty in light of
which Article V is incomplete, a compromise, or even a mistake (if it purports to prescribe the
exclusive procedures for making higher law). Therefore, in order for the Constitution to be able
to realize its commitment to popular sovereignty, and indeed for it to be legitimate, We the
People must be free to amend and transform it outside the formal procedures of Article V,

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including through the six-phase model of higher lawmaking that Ackerman develops. Otherwise,
we are not a properly self-governing People.
The hortatory claim is that We the People are more likely to live up to the rights and
responsibilities of self-government if we believe that the People, as recently as the New Deal and
Civil Rights Revolution, rose to the occasion of transforming the higher law of the Constitution.
After all, if We the People have done so only once (or perhaps twice) in American history, and
not since the Founding (or possibly Reconstruction) at that, what is the hope of the People
accomplishing anything great by way of higher lawmaking in our time? Other theories, including
those of Article V exclusivity, denigrate the constitutional creativity of We the People, and thus
may demoralize or debilitate the People, undermining the possibility of popular sovereignty.
Through advancing the idea that the possibility of popular sovereignty requires us to
supplement or even override Article V, Ackerman proves to be a popular sovereignty-perfecting
theorist. 70 That is, he is arguing that the Constitution presupposes a theory of popular sovereignty
in light of which Article Vevidently a fixed point or foundational textcan be seen to be
incomplete, a compromise, or even a mistake. And he is arguing for interpreting the Constitution
so as to perfect it from the standpoint of his theory of popular sovereignty, even to the point of
supplementing or overriding provisions of its text. In terms of Dworkins formulations,
Ackerman is calling for interpreting the Constitution so as to make it the best it can be and
putting forward a moral reading of the Constitution.
VI. CONCLUSION: RECONCEIVING THE MORAL READING AS A BIG TENT
THAT INCLUDES ACKERMANS LIVING CONSTITUTIONALISM

In Chapter 4, I applauded Ackerman for developing a conception of fidelity in

constitutional interpretation that is an alternative to that of conventional originalists. But I

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criticized him for resisting the moral reading. I argued that we should conceive the moral reading
as a big tent that can encompass broad originalist, living originalist, or living constitutionalist
conceptions such as those of Ackerman and Balkin. I urged Ackerman as well as Balkin to
reconceive his project as being in support of a moral reading, not as offering an alternative to it.
For constitutional theorists like Ackerman and Balkin can provide firmer ground than Dworkin
has offered for the moral reading in fit with historical materials and our constitutional practice.
We should conceive Ackerman as developing a moral reading (in a general sense, not
Dworkins specific sense), not merely a historicist reading. And we should acknowledge that he
has provided an account that splendidly fits with and justifies our constitutional practice, with all
its imperfections. He has put forward an account of a living constitution that is worthy of our
fidelity. It deserves not to be betrayed or erased by Scalias and Thomass originalism, the
judicial battering ram for obliterating the achievements of the twentieth century 71 and for
thwarting the progress of the twenty-first century. We need moral readings of the Constitution
for the twenty-first century that can offer hope and provide effective tools for resisting and even
overcoming such originalist battering, and Ackerman has provided a powerful, imaginative, and
magnificent one.
I conclude my discussion of Balkins and Ackermans theories (in Chapters 6 and 7) with
a coda on the broad originalists resistance to a moral reading. They have sought to develop an
intermediate theory between concrete, narrow originalism and an abstract moral reading like that
defended by Dworkin (or a philosophic approach such as that developed by Barber and me). But,
as Barber and I argued in Constitutional Interpretation: The Basic Questions, 72 and as my
consideration of the arguments of Balkin and Ackerman here has substantiated, no middle way
exists between narrow originalism and a moral reading or philosophic approach. No middle way

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exists because the words and phrases of the Constitution can refer either to (1) general ideas or
concepts or (2) concrete conceptions thereof. If your theory of meaning falls into the first group,
you accept the distinction between concepts and conceptions and what that distinction implies
about constitutional interpretation. If your professed theory of meaning is of the second type, you
profess a narrow originalism and prepare the way for irresponsible authority under constitutional
cover.
So-called broad originalists are free to decide whether to associate themselves with one
group or the other. This decision determines whether they will accept or avoid the burdens of
defending controversial moral choices. What they cant do is avoid the controversial moral
choices. We should reconceive their projects as developing moral readings that are better
grounded in fit with historical materials than Dworkins own moral reading was, but nonetheless
as coming within the big tent of the moral reading.

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NOTES TO CHAPTER SEVEN
1. BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS (2007); BRUCE ACKERMAN, THE
DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010); BRUCE ACKERMAN, WE THE PEOPLE:
THE CIVIL RIGHTS REVOLUTION (2014) [hereinafter CIVIL RIGHTS REVOLUTION].
2. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 329, 334.
3. See id. at 16-17, 19, 311.
4. Id. at 19, 32-36, 44-46, 328-37, 340.
5. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter FOUNDATIONS];
BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter
TRANSFORMATIONS]; ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 336 (referring to
projected Volume IV, WE THE PEOPLE: INTERPRETATIONS).
6. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 10, 328-35.
7. Id. at 107-09, 152, 162, 320-21; see also id. at 4-5, 9, 11, 312.
8. RONALD DWORKIN, LAWS EMPIRE 255 (1986).
9. JACK M. BALKIN, LIVING ORIGINALISM 74-99 (2011).
10. ACKERMAN, FOUNDATIONS, supra note 5, at 58-80; ACKERMAN, TRANSFORMATIONS, supra
note 5, at 15-17.
11. ACKERMAN, FOUNDATIONS, supra note 5, at 131-62; ACKERMAN, TRANSFORMATIONS, supra
note 5, at 119.
12. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
143 (1990); Antonin Scalia, Originalism: The Lesser Evil, 57 UNIVERSITY OF CINCINNATI
REVIEW 849, 854, 86263 (1989).
13. Symposium, Fidelity in Constitutional Theory, 65 FORDHAM LAW REVIEW 1247 (1997).

277

14. See ACKERMAN, FOUNDATIONS, supra note 5, at 88-89, 15962 (developing an understanding
of fidelity as questing multigenerational synthesis or interpretive synthesis across the three
constitutional regimes or moments of the Founding, Reconstruction, and the New Deal); Bruce
Ackerman, A Generation of Betrayal?, 65 FORDHAM LAW REVIEW 1519, 151920 (1997)
(advancing his conception of fidelity as pursuing intergenerational synthesis).
15. James E. Fleming, Fidelity to Our Imperfect Constitution, 65 FORDHAM LAW REVIEW 1335,
1337 (1997).
16. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 336.
17. Id. at 81.
18. Id. at 36.
19. Id.
20. Id. at 309-10, 330, 335 (discussing Shelby County v. Holder, 133 S.Ct. 2612 (2013)); id. at 27
& 343 n.3 (discussing dissent in National Federation of Indep Bus. v. Sebelius, 183 L. Ed. 2d
450, 536 (2012)); id. at 308-09 (discussing dissent in United States v. Windsor, 133 S.Ct. 2675
(2013)).
21. Id. at 329.
22. Bruce Ackerman, 2006 Oliver Wendell Holmes Lectures: The Living Constitution, 120
HARVARD LAW REVIEW 1737 (2007).
23. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 16, 19, 311, 328-37, 340.
24. Id. at 329.
25. See, e.g., ROBERT W. BENNETT & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A
DEBATE 3 (2011) [hereinafter SOLUM].
26. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 129 (discussing Brown v. Board of

278

Education, 347 U.S. 483 (1954)); id. at 301 (discussing Loving v. Virginia, 388 U.S. 1 (1967)).
27. Id. at 336.
28. Id.
29. BALKIN, LIVING ORIGINALISM, supra note 9, at 3.
30. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 10, 328.
31. William H. Rehnquist, The Notion of a Living Constitution, 54 TEXAS LAW REVIEW 693
(1976); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3748 (Amy Gutmann ed., 1997).
32. Scalia, Originalism, supra note 12, at 855.
33. See, e.g., SOLUM, CONSTITUTIONAL ORIGINALISM, supra note 25, at 73-74.
34. JOHN O. MCGINNIS AND MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD
CONSTITUTION 81-82, 100-01 (2013).
35. DAVID A. STRAUSS, THE LIVING CONSTITUTION 33-49, 77-92, 115-39 (2010).
36. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 2, 62.
37. Id. at 107-09, 152, 162, 317, 320-21; see also id. at 4-5, 9, 11, 312.
38. Neil Young, Campaigner, on the album, Decade (Warner Reprise, 1977).
39. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 83-104, 295-300.
40. BARRY FRIEDMAN, THE WILL OF THE PEOPLE (2009).
41. STRAUSS, THE LIVING CONSTITUTION, supra note 35, at 115-39.
42. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 4-5, 9, 11, 312.
43. STRAUSS, THE LIVING CONSTITUTION, supra note 35, at 24.
44. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 13, 335-37; BALKIN, LIVING
ORIGINALISM, supra note 9, at 3-20.

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45. BALKIN, LIVING ORIGINALISM, supra note 9, at 21-34, 74-99.

46. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 28.
47. Id. at 44-46. To be sure, Ackerman does say that he has no interest in constructing a
constitutional canon for eternity, and he concedes that the leading principles of the civil rights
legislation could be repealed by a simple majority of Congress if supported by the President. Id.
at 80-81. But he argues that We the Judges do not have constitutional authority to erase the
considered judgments of We the People. Id. at 317 (emphases omitted). He also contends that
the New Deal-Civil Rights regime . . . plac[ed] a bipartisan seal of approval on the fundamental
principles expressed by the landmark statutes of the new order and put[] their repeal beyond the
pale of political possibility. Id. at 49.
48. BALKIN, LIVING ORIGINALISM, supra note 9, at 309-12 (discussing differences between his
theory and Ackermans).
49. James E. Fleming, We the Exceptional American People, 11 CONSTITUTIONAL COMMENTARY
355 (1994); James E. Fleming, We the Unconventional American People, 65 UNIVERSITY OF
CHICAGO LAW REVIEW 1513 (1998).
50. See, e.g., Ronald Dworkin, The Forum of Principle, in RONALD DWORKIN, A MATTER OF
PRINCIPLE 33 (1985).
51. BALKIN, LIVING ORIGINALISM, supra note 9, at 3.
52. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 107-09, 152, 162, 320-21; see also
id. at 4-5, 9, 11, 312.
53. Id. at 43, 312, 337.
54. Id. at 160, 170.

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55. Id. at 16, 311.

56. Cf. Abraham Lincoln, Address Delivered at the Dedication of the Cemetery at Gettysburg
(Nov. 19, 1863), in 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 17, 23 (Roy P. Basler ed.,
1953).
57. See Planned Parenthood v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in the
judgment in part and dissenting in part) (the people may legislate restrictions on abortion because
the Constitution says absolutely nothing about it); Cruzan v. Director, Missouri Dept. Of
Health, 497 U.S. 261, 293 (1989) (Scalia, J., concurring) (legislature may decline to honor a
patients wish not to have certain measures taken to preserve her life because the Constitution
says nothing about the matter).
58. See, e.g., SCALIA, A MATTER OF INTERPRETATION, supra note 31, at 40-41 (rot); RICHARD
A. EPSTEIN, HOW PROGRESSIVES REWROTE THE CONSTITUTION (2006) (rewriting).
59. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 31, 150-51, 209, 213, 214, 329.
60. RANDY BARNETT, RESTORING THE LOST CONSTITUTION (2004).
61. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 35.
62. Id. at 34-35, 71.
63. Id. at 160, 170.
64. DWORKIN, LAWS EMPIRE, supra note 8, at 239.
65. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 297.
66. Id. at 128, 129, 131.
67. Id. at 129-33.
68. Cass R. Sunstein, Second-Order Perfectionism, 75 FORDHAM LAW REVIEW 2867 (2007).
69. ACKERMAN, TRANSFORMATIONS, supra note 5, at 119; see also ACKERMAN, CIVIL RIGHTS

281

REVOLUTION, supra note 1, at 16-17, 19).

70. Cf. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY
16, 210-11 (2006) (putting forward a Constitution-perfecting theory by analogy to the
process-perfecting theory developed in JOHN HART ELY, DEMOCRACY AND DISTRUST: A
THEORY OF JUDICIAL REVIEW (1980)).
71. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 1, at 329.
72. SOTIRIOS A. BARBER & JAMES E. FLEMING, CONSTITUTIONAL INTERPRETATION: THE BASIC
QUESTIONS 116 (2007).

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PART IV
Fidelity to Our Imperfect Constitution

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CHAPTER EIGHT
Is It Time to Rewrite the Constitution? Fidelity Through Perfecting Our Imperfect
Constitution
In recent years, many have argued that our constitutional system is failing or at least
dysfunctional. Some have asked, Is it time to rewrite the Constitution? We should break this
question down into two parts: (1) Is it time to rewrite the Constitution by adopting particular
amendments? and (2) Is it time to throw out the Constitution and write a new one through
holding a constitutional convention, as Sanford Levinson has urged? 1 Or, beyond that, to give
up on the Constitution altogether, as Michael Seidman has proposed? 2
A further question is, to what extent does the Constitution and our constitutional practice
under it already permit or require rewriting it as we build out our framework of constitutional
self-government over time? Despite claims by some originalists (such as John McGinnis and
Michael Rappaport, discussed in Chapter 3) that the formal amending procedures of Article V
are the exclusive legitimate means for changing the Constitution, some living constitutionalists
(like David Strauss and Bruce Ackerman, discussed in Chapters 5 and 7) have gone so far as to
argue that formal constitutional amendments are largely irrelevant to such change. Strauss argues
that common law constitutional interpretation, not amendment through the formal procedures of
Article V, has been our primary means for constitutional change. 3 Ackerman argues that the sixphase higher lawmaking procedures outside Article V that he elaborates have been the primary
means whereby We the People have hammered out such changes. 4 To the extent that living
constitutionalists like Strauss and Ackerman are right, perhaps we dont need formally to rewrite
the Constitution to realize constitutional change. Perhaps we already do well enough through
rewriting it informally.

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For that very reason, conservatives and libertarians like Richard Epstein have bemoaned
that progressives already have rewritten the Constitution, expanding governmental powers and
eviscerating economic liberties. 5 Similarly, conservative originalists like Robert Bork and
Antonin Scalia have complained that liberals already have rewritten the Constitution, reading
unenumerated personal liberties into it. 6 And libertarian originalists like Randy Barnett have
called for restoring the lost Constitution by undoing the progressive and liberal redactions. 7
In this book, I reject all forms of originalism and recast the best forms of living
constitutionalism. I argue that a moral reading or philosophic approach, not any version of
originalism or living constitutionalism, is the most faithful to the Constitutions commitments. I
characterize my approach as a Constitution-perfecting theory under which we should interpret
the Constitution so as to make it the best it can be. 8 That is not to say that we should interpret it
as a perfect Constitution. Rather, whatever imperfections our Constitution and our constitutional
practice under it may have, we should interpret it in its best light. Constitution-perfecting
approaches like Dworkins and mine, while not interpreting the Constitution to make it perfect,
nonetheless mitigate some of its imperfections by aiming for what Levinson has called happy
endings. 9 Furthermore, we adopt and strive to maintain an attitude of fidelity to our imperfect
Constitution.
Proponents of views like Dworkins and mine may be less ready than some others to
argue that we should rewrite the Constitution as a wholeto throw out the Constitution and
adopt a new one. This notwithstanding the fact that we recognize many imperfections in our
Constitution and constitutional practice. We also may be less likely than some others to argue for
adopting a number of specific constitutional amendments.

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Many have criticized Article V for its obduracy to constitutional amendment. 10 I should
reiterate what I said in Chapter 3 in support of Article V. First, I gave two cheers for Article V in
a defensive sense, for it has protected the Constitution and its citizens against numerous illiberal
and ill-conceived amendments that would erode basic liberties or limit important powers have
been introduced in Congress in recent years. Second, I argued that there is much to be said for
Article V in an affirmative sense. The obduracy of Article V to ready and easy amendment of the
Constitution has encouraged and fostered broad interpretation of the Constitutions rightsprotecting and power-conferring provisions. It has underwritten approaches to constitutional
interpretation like those of Dworkins moral reading, Sagers justice-seeking constitutionalism,
and Barbers and my philosophic approach (not to mention Strausss common law constitutional
interpretation and Jack Balkins living originalism). 11
These two points may argue against the need to rewrite the Constitution, despite its flaws.
The main circumstance in which I would support specific constitutional amendments would be
where they would overrule egregiously erroneous decisions of the U.S. Supreme Courtfor
example, Citizens United v. Federal Election Commission; DeShaney v. Winnebago County;
United States v. Lopez; and District of Columbia v. Heller. 12 But I am under no illusion that there
is strong popular support for amendments to the Constitution to overturn these decisions.
Moreover, I recognize that if we had the political will to amend the Constitution to overturn
these decisions, the circumstances probably would obtain (or soon would obtain) for reversing
these decisions without formal amendments.
But even under a Constitution-perfecting theory, and even with an attitude of fidelity to
our imperfect Constitution, we might conclude that it is time to rewrite the Constitution in certain
circumstances. And so, let us return to the opening question: Is it time to rewrite the

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Constitution? The answer depends upon our judgments concerning: (1) whether the Constitution
has failed; (2) whether it has contributed to incorrigible breakdown or dysfunction; (3) whether it
is irredeemably undemocratic or unjust; and (4) whether the prospects for reform and
improvement through rewriting the Constitution are good. Making such judgments may
presuppose theories of constitutional failure, dysfunction, democracy, and justiceand in turn
presuppose a theory of constitutional success. In this concluding chapter, I shall address such
issues.
I. WHAT IS CONSTITUTIONAL FAILURE?
What is constitutional failure? Does it presuppose a conception of constitutional success
and of the preconditions for constitutional success? 13 How does a constitutional failure differ
from or relate to other constitutional misfortunes, such as an imperfection in the constitutional
document (for example, the imperfect provision for affirmative liberties, which has led to
decisions like Dandridge v. Williams, San Antonio v. Rodriguez, Harris v. McRae, and DeShaney
v. Winnebago County); 14 a decision in constitutional law that has horrible consequences for the
lives of particular citizens or groups and for the way of life of the polity (for example, Dred Scott
v. Sandford, Plessy v. Ferguson, and Korematsu v. United States); 15 a decision that has
disastrous consequences for interpretive method and for the development of doctrine in
important areas (for example, Slaughter-House Cases and Bowers v. Hardwick); 16 or a decision
that makes a travesty of our constitutional order (for example, Buckley v. Valeo or, worse yet,
Citizens United, which reduce our political system from a fair scheme of equal participation to a
veritable marketplace of ideas)? 17 Finally, how does a constitutional failure differ from or relate
to a constitutional stupidity (for example, the fact that the entire Bill of Rights did not apply to
the states from the beginning) or a constitutional tragedy (for example, the Supreme Courts

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holding in Washington v. Glucksberg that the Constitution does not protect the right to die,
including the right of terminally ill persons to physician-assisted suicide)? 18
We might also ask, how does a constitutional failure differ from or relate to other types of
failurefor example, a moral, political, or institutional failure or a failure of policy? However
we answer these questions, it seems clear that we have no dearth of constitutional misfortunes.
Without purporting to answer them, I begin by making some observations about the discourse of
failure that is in the air at the present time; then sketch the conceptions of constitutional success
and failure that are implicit in my Constitution-perfecting theory of securing constitutional
democracy; distinguish three possible sites of constitutional failure (creation, maintenance, and
change); and discuss a phenomenon I call successful failures of the American Constitution.
Whatever failure is, there is considerable talk of it (as well as of dysfunction) in the air
these days. Just consider these titles:
!

Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise
of Presidential Democracy (not to mention his The Decline and Fall of the American
Republic)

Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate

Alan Wolfe, Does American Democracy Still Work?

Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong
(and How We the People Can Correct It) (along with his Framed: Americas 51
Constitutions and the Crisis of Governance), and, most recently,

Sotirios A. Barber, Constitutional Failure. 19

Consider also:

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!

John Dean, Broken Government: How Republican Rule Destroyed the Legislative,
Executive, and Judicial Branches

Thomas Mann and Norman Ornstein, The Broken Branch: How Congress is Failing
America and How to Get It Back on Track (along with their Its Even Worse Than It
Looks: How the American Constitutional System Collided With the New Politics of
Extremism) and

Robert Kuttner, The Squandering of America: How the Failure of Our Politics
Undermines Our Prosperity. 20

Doubtless there are other examples as well, but this list should serve to illustrate the range of
discourse about failure.
We should ask, are these authors really arguing that we are experiencing a constitutional
failure, as distinguished from a moral failure, a political failure, an institutional failure, or a
failure of policy that may or may not be directly related to the Constitution? To be talking about
distinctly constitutional failure, I submit, one has to be talking about failures of the Constitution,
failures caused by the Constitution, failures stemming from a feature or defect of the
Constitution, even failures required by the Constitution, or the like. For example, if a filibuster in
the Senate somehow were to cause a breakdown of the federal government and the constitutional
order, that would not be a constitutional failure because the Constitution does not require the
availability of filibusters (and, indeed, some have argued that they are unconstitutional). On the
other hand, if the Supreme Courts decision in Bush v. Gore, 21 resulting in the victory of George
W. Bush in the Electoral College, somehow had provoked a democratic revolution and the
overthrow not only of President Bush and the Court but indeed of the entire constitutional order,
that would be a constitutional failure, because the Constitution requires the election of the

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president through the Electoral College system and thus the Courts decision in Bush v. Gore is
directly related to it.
The striking fact of the matter is that, for all the ominous talk of failure, it is for the most
part not talk of constitutional failure in this sense. Instead, it is talk of other sorts of shortcomings
or failure: a moral failure (for example, in which a people prove to lack the public
reasonableness and religious moderation necessary for a morally pluralistic constitutional
democracy); 22 a political failure (for example, the emergence of a new form of democratic
politics that prompts analysts to ask whether American democracy still works); 23 an institutional
failure (for example, the developments leading to the diagnosis of the institution of Congress as
the broken branch); 24 or a failure of policy (for example, a policy that has unintended bad
consequences or indeed makes a problem worse rather than helping to solve it).
Some readers may see this as an overly limited, legalistic, or formalistic understanding of
constitution and constitutional failure. My account is indeed formalistic, as Christopher
Eisgruber has suggested. 25 It is in fact proudly formalistic. I think that drawing these distinctions
is the most illuminating way to proceed in thinking about constitutional failure. To be sure, we
might expect that any constitutional failure is likely to be accompanied by moral failure, political
failure, institutional failure, or failures of policy (though not necessarily so), but that is not to say
that moral failure, political failure, institutional failure, or failures of policy are necessarily
accompanied by constitutional failure. Even if these types of failure may be interrelated, they are
not the same thing.
Thus, it appears that the worrisome states of affairs diagnosed are not failures of the
Constitution, failures required by the Constitution, or failures directly attributable to the
Constitution. Of course, it could be the case that these types of failure are ultimately attributable

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to the Constitution in the sense that they are made more likely by our constitutional design. This
seems to be the suggestion of Barbers critique of Madisons (and our Constitutions) eschewal
of the Aristotelian tradition of supplying the defect of better motives by inculcating moral and
civic virtues in favor of a strategy of private incentives. 26 Moreover, it could be the case that
long-term or endemic failures of institutions, or a decay in the political culture, are ultimately
attributable, indirectly, to the Constitution, if only in the sense that the Constitution did not
establish better institutions or better mechanisms for inculcating and maintaining a healthy
political culture. 27 But, again, it seems best to see such failures as institutional failures or moral
failures rather than as constitutional failures as such.
Let me illustrate my claim with a few observations about Levinsons book, Our
Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can
Correct It). Levinson may seem to be arguing that the U.S. Constitution has failed or is in serious
danger of failing. Levinson is talking about potential constitutional failure in my formal sense:
failures of the Constitution, failures directly attributable to the Constitution, indeed perhaps
failures required by the Constitutionthese would be failures caused by the hard-wired
features of the structural Constitution that he criticizes. However, he does not talk about actual
failure but about serious defects, problematic dysfunction, and hard-wired features of our
structural Constitution that could contribute to a crisis if not a failure. Nowhere does he say our
Constitution has failed. Indeed, much of his gripe with the Constitution and our constitutional
culture concerns the extent to which we venerate the Constitution and view it as a success. Thus,
he laments how difficult it is to arouse people about the need for a constitutional convention to
make basic changes in the structural Constitution. 28 He is frustrated that it is such a struggle to
get people to see, as he puts it in his title, where the Constitution goes wrong. It is even more

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difficult to motivate them to press for constitutional amendments, let alone a constitutional
convention, to correct it.
What exactly is Levinsons indictment of the U.S. Constitution? He argues that it is
seriously undemocratic as measured by a normative theory of democracy that is more
majoritarian than the arrangements established in the Constitution. His criticism also includes a
number of empirical propositions in support of the view that the constitutional order is
dysfunctional, if not broken. He fears that the undemocratic features of our structural
Constitution he criticizes may contribute to constitutional crises, and he tells us about a number
of crises that we have narrowly averted (including some about which we did not even know). For
example, in 1976, had only 5,559 voters in Ohio and 3,687 voters in Hawaii voted for Gerald
Ford instead of Jimmy Carter, Ford would have had 269 electoral votes to Carters 268 and
Reagans 1, and that would have sent the choice to the House of Representatives. 29
But his analysis, focusing as it does on the hard-wired features of our structural
Constitution that have been in place since the beginning, could have been written at most any
time during the nations history, and certainly any time during the twentieth century. 30 Granted,
the presidential election controversy culminating in Bush v. Gore, shifts in population resulting
in the disproportionate influence of small states in the Senate and the Electoral College, and the
emergence of the red states-blue states phenomenon (with small red states having
disproportionate influence in the Senate and presidential elections) give the book a special
urgency at the present time. Nonetheless, even if George Bush had easily carried Florida in the
2000 presidential election and Al Gore had conceded defeat on election night, Levinson still
would have viewed the outcome as a travesty that demonstrates one important place where the
Constitution goes wrong (and what We the People should do to correct it). After all, Gore still

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would have won the nationwide popular vote by a considerable margin and still would have lost
in the Electoral College, 271-267. And so, Levinson still would have called for the abolition or
reform of the Electoral College in favor of direct popular vote and a requirement that, to be
elected, a presidential candidate must win a majority of the popular vote. 31
Thus, Levinsons book is not simply a diagnosis of constitutional failure at the present
time. Instead, it is a descendant of writing during the Progressive Era castigating the Constitution
for being undemocratic and for not embodying more features of a British-style system of
parliamentary supremacy. Not surprisingly, he praises this Progressive Era literature and the
Progressive movement for constitutional change. Woodrow Wilson could have written much of
this book (indeed, witness the quotation from Wilson with which Levinson concludes his
book). 32
In sum, Levinson does not so much argue that the Constitution has failed as that the
Constitution is seriously imperfect from the critical standpoint of a normative political theory of
majoritarian democracy that is not embodied in the Constitution. He criticizes the conception of
democracywith all its limitations on majority rule and one person, one voteestablished by
the Constitution. Thus, his book is notably different from other books about failure in an
important respect: the other books clearly are for and about our present predicamentfor
example, Wolfes Does American Democracy Still Work?, the title of which implies that it used
to work but no longer does. Now I turn from Levinsons argument that the Constitution is
imperfectly democratic to my own Constitution-perfecting theory of securing constitutional
democracy.

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II. CONSTITUTIONAL FAILURE FROM THE STANDPOINT OF A CONSTITUTION-PERFECTING THEORY
Anyone who has read this book to this point may ask, what am I doing writing about
constitutional failure? After all, I put forward a Constitution-perfecting theory, a theory that
strives to interpret the Constitution so as to make it the best it can be. 33 And I might be accused
of subscribing to the perfect Constitution view that Henry Monaghan famously derided (and
that Eisgruber has cleverly analyzed as a no pain, no claim view). 34 That might make me seem
an unlikely candidate for writing on constitutional failure. But there is no inconsistency between
propounding a Constitution-perfecting theory and believing that the Constitution as it stands is
seriously flawed. Similarly, there is no inconsistency between Dworkins propounding a moral
reading of the Constitution and a view of constitutional interpretation that aspires to happy
endings, while also writing a book that asks Is Democracy Possible Here?35 Or between
Barbers propounding a moral realist reading of the Constitution that interprets it to embody the
best understandings of its commitments while also writing a book that argues that the
Constitution has failed or is on the verge of failing. For a Constitution-perfecting theory does not
entail that the Constitution is the best a constitution can be. Rather, it entails that, in interpreting
whatever imperfect constitution we have, we should strive to make it the best it can be.
I plan to sketch the conceptions of constitutional success and failure that are implicit in
my Constitution-perfecting theory of securing constitutional democracy. I want to begin by
suggesting three possible sites of constitutional failure. Here I draw from Walter F. Murphys
Constitutional Democracy: Creating and Maintaining a Just Political Order. In that book,
Murphy did not develop a theory of constitutional failure as such. Instead, he focused on
constitutional creation, maintenance, and change. 36 Nonetheless, we can infer from his analysis
three principal possible sites of constitutional failure, to wit: creation, maintenance, and change.

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First, a constitution or constitutional order might fail in its very creation. It might be
analogous to a product that is botched in its very design. It might prove to be wholly inadequate
to pursuing its own ends, much less any desirable ends worthy of a people aspiring to
constitutional self-government. The Articles of Confederation arguably failed in this way. Barber
suggests, though, that even if the Articles failed to meet the needs of its people, that might be
an institutional breakdown rather than a constitutional breakdown, and the Articles might even
appear as something of a success. We the People, after all, proved capable of fundamental
institutional reform through peaceful means, of forming a more perfect Union as
contemplated in the Preamble through adopting the Constitution.37
Second, a constitution or constitutional order might fail because of improper or
inadequate maintenance. In American Constitutional Interpretation, Murphy, Barber, Stephen
Macedo, and I conceive the enterprise of constitutional interpretation on the basis of three
fundamental interrogatives: What is the Constitution, who may authoritatively interpret it, and
how ought it to be interpreted? 38 Murphys idea of constitutional interpretation as constitutional
maintenance, 39 which I share, fosters a more comprehensive and comprehending view of all
three interrogatives what, who, and howthan do conventional accounts of constitutional
interpretation, especially originalist accounts.
What is the Constitution? On our view, the Constitution includes not only the
constitutional document but also the broader constitutional order: original meaning or
understanding, underlying political theories of democracy and constitutionalism, previous
interpretations as the constitutional order has developed, settled practices, traditions, and
aspirations. Furthermore, the constitutional document and constitutional order encompass
purposes such as those set forth in the Preamble. Who may interpret? Instead of judicial

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monopoly, we embrace departmentalism, that is, dividing yet sharing interpretive authority
among courts, legislatures, executives, and the citizens. How to interpret? Quite unlike narrow
originalism, I have defended a philosophic approach to and Constitution-perfecting theory of
constitutional interpretation. 40
I want to make three points about the idea of constitutional maintenance in relation to the
idea of constitutional failure. My first point concerns the idea of maintenance itself: it
underscores that the Constitution is not a machine that would go of itself. Instead, it is a
scheme that requires maintenance and repair to make it work, to keep it from failing. To be sure,
the departmentalism that I have defended is hospitable to the view that constitutional norms are
self-enforcing through the operation of the political processes to a greater degree than is
acknowledged by conventional court-centered accounts. 41 Such accounts mistakenly think that
the protection of constitutional norms comes only from courts enforcing them against the
political processes. But Murphys and my accounts emphasize the place of courts in the larger
institutional scheme of courts, legislatures, executives, and ultimately the people themselves
sharing authority and responsibility to interpret the Constitution so as to maintain the system.
Furthermore, our idea of maintenance is more comprehensive and comprehending than
interpretation conceived in narrow originalist fashion as doing backward-looking historical
research into relatively concrete original meanings and then preserving those meanings against
encroachment or change.
The second point stems from the fact, already noted, that the idea of constitutional
interpretation as constitutional maintenance encourages a broader view of what and how than do
conventional accounts, in particular, originalist accounts. It fosters a salutary concern for
furthering the purposes of the constitutional order instead of being focused in a backward-

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looking way with interpreting narrowly conceived clauses in isolation or with taking a litigationoriented perspective. It also underwrites an approach to constitutional maintenance as requiring a
formative project to cultivate the civic virtues and foster the capacities for constitutional selfgovernment. 42
Originalists typically claim that they have a monopoly on the classical, interpretive
justification of judicial review: courts are to interpret the Constitution and to preserve it against
encroachment by legislative and executive encroachment. 43 Originalists might say that they, too,
believe in constitutional maintenance in this sense of preservation. For example, Scalia likes to
say that the point of the Constitution is to preserve the original meaning of the Constitution and
to prevent change. Indeed, he has written that the Constitutions whole purpose is to prevent
change. According to Scalia, A society that adopts a bill of rights is skeptical that evolving
standards of decency always mark progress, and that societies always mature, as opposed to
rot. 44 For a society or a constitution to rot sounds like a form of failure.
But narrow originalism, if scrupulously practiced, would be a poor form of constitutional
maintenance. It would shackle us to the relatively concrete original meanings, expectations, and
applications of the framers and ratifiers. Indeed, thankfully for the sake of maintenance,
originalism is honored more in the breach than in the observance. If you have any doubts on this
score, I would point out that originalists common complaint (discussed in Chapters 1 to 4) is
that judicial decisions have not followed the original meaning of the Constitution as they
understand it. I daresay that we would not have originalism as a polemical movement if our
practice were in fact originalist.
The third point concerns the fact that the idea of constitutional interpretation as
constitutional maintenance fosters a broader view of who than do conventional accounts. It

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fosters a healthy, vigorous departmentalism, as opposed to conventional accounts of judicial
monopoly or at least judicial supremacy, especially the hubristic view of the Rehnquist Court
and now the Roberts Court. Despite the claims of judicial monopoly or judicial supremacy, the
actual practice of most arrangements in fact produces some form of departmentalism. Some form
of departmentalism is healthier than having courts be the ultimate if not the exclusive interpreter
of the Constitution. We should, with Murphy, situate interpreters as political actors in the
political system and conceive interpretation as part of the operation of the political system, not
simply as the peculiar province of judges divining and enforcing the original meaning of a legal
document. 45 This conception of constitutional maintenance at once broadens what courts
constitutional responsibilities are and broadens what legislative and executive responsibilities
are. Legislatures and executives share in the responsibilities of both interpretation and
maintenance. Under such a departmentalist arrangement, a constitutional order may be more
successful at constitutional maintenance that staves off decline, breakdown, and failure than
under a system of judicial monopoly that ignores the imperatives of constitutional statesmanship
and drives out the idea of taking the Constitution seriously outside the courts.
Finally, a constitution or constitutional order might fail with respect to change or reform.
I distinguish two types of such failure. For one thing, a people might lose the very capacity to
change or reform. For a people committed to constitutional self-government, this clearly would
be a form of failure. 46 There may be implicit in Levinsons criticism of our undemocratic
Constitution and, in particular, Article Vs onerous procedures for amendment the charge that it
has enervated or destroyed our very capacity to change or reform through constitutional
amendment. A similar charge is implicit in Ackermans criticism of Article V exclusivity as
undermining the very possibility of popular sovereignty. 47

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For another, a constitution or constitutional order might breach the limits of legitimate
constitutional change, for example, by adopting what Murphy would conceive as an
unconstitutional amendment, 48 or by adopting what my theory of securing constitutional
democracy would conceive as an amendment repudiating fundamental preconditions for the
trustworthiness and legitimacy of our constitutional democracy. 49 Those, too, would be forms of
failure or breakdown. We should distinguish, with Murphy, between amending a constitutional
order (correcting, adjusting, or modifying it) and repudiating it (destroying it and creating
another one). 50 Amendments repudiating unalienable rights or constitutive principles would
signal a repudiation or breakdown of the existing regime or a change of identity to a new regime
by destroying an existing constitutional order and creating another one.
My Constitution-perfecting theory of securing constitutional democracy presupposes a
conception of constitutional success and of the preconditions for constitutional success. In
Securing Constitutional Democracy, I develop a guiding framework with two fundamental
themes: first, securing the basic liberties that are preconditions for deliberative democracy to
enable citizens to apply their capacity for a conception of justice to deliberating about and
judging the justice of basic institutions and social policies as well as the common good; and,
second, securing the basic liberties that are preconditions for deliberative autonomy to enable
citizens to apply their capacity for a conception of the good to deliberating about and deciding
how to live their own lives. Together, these themes afford everyone the status of free and equal
citizenship in our morally pluralistic constitutional democracy. They reflect two bedrock
structures of our constitutional scheme: deliberative political and personal self-government. Each
theme would secure preconditions for the trustworthiness of the outcomes of the political process
in our constitutional democracy. That is, to be trustworthy, a constitutional democracy must

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secure and respect a scheme of basic liberties that guarantees the preconditions not only for
deliberative democracy but also for deliberative autonomy. 51 Furthermore, as developed in
Ordered Liberty: Rights, Responsibilities, and Virtues, my theory appreciates that constitutional
maintenance requires a formative project of cultivating the civic virtues and fostering the
capacities for constitutional self-government. 52
III. STRATEGIES FOR RESPONDING TO IMPERFECTION
In confronting (real or arguable) constitutional failure, dysfunction, democratic deficits,
and injustice, we need strategies for responding to imperfection (to recall the title of a book
edited by Levinson). 53 These strategies may include convening a constitutional convention or
adopting specific formal constitutional amendments through the procedures of Article V. But, as
indicated above, I shall argue for less formal strategies: (1) developing informal constitutional
amendments over time (for example, through Strauss-style common law constitutional
interpretation or Ackerman-style higher lawmaking outside the procedures of Article V); (2)
interpreting the Constitution so as to make it the best it can be (Dworkins moral reading) or to
redeem its promises (Balkins living originalism); and (3) working around imperfections through
what I have called successful failures, whereby the features of a Constitution fail to work as
contemplated or designed, but we comprehend that that failure turns out to be a good thing.
Under these strategies for responding to imperfection, we adopt and strive to maintain an
attitude of fidelity to our imperfect Constitution. We conceive the Constitution as a framework of
general powers and abstract rights, as an instrument for pursuing the ends proclaimed in the
Preamble, as an instrument for redeeming its promises. (Here I deliberately echo and invoke the
work of Barber and Balkin.) We approach the Constitution as an experiment in constitutional
self-government, a scheme to be built out (Balkin) or hammered out (Ackerman) over time, not a

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fully finished structure to begin with. We appreciate that the building is never completethat the
Constitution will always be building, as Charles Black put it. 54
Levinson basically replies, that may be well and good with respect to rights, but we need
a new constitution as far as structures and powers are concerned. 55 As discussed above, he
details many flaws in the hard-wired features of our undemocratic Constitution. But I have
several responses. As noted above, many objectionable features of our constitutional practice are
not constitutionally required and indeed could be eliminated by changes in our practices without
a constitutional amendment or new constitution: for example, abolishing the filibuster. Many
desirable features concerning structures and powers could be derived from better understandings
of federalism and separation of powers than presently hold sway in our constitutional practice.
That is, many objectionable features of our constitutional practice are just that. They are not
constitutionally required on the best understanding of our constitutional structures and powers. If
political circumstances supported a constitutional amendment to eliminate these objectionable
features, they probably also would support eliminating them by legislative repeal or judicial
overruling.
Moreover, many attractive or imperative features could be derived from a muscular
conception of the powers and rights that are preconditions for a republican form of
governmentif we had the political will to instantiate such a conception in our political and
constitutional practice. For example, if the people were to elect Presidents and Congresses who
would work to guarantee such preconditions, and if Presidents over time were to appoint
Supreme Court justices who would embrace such a conception of the preconditions for the very
legitimacy of our republican constitutional order. If we dont have the political will to bring
about such changes, I doubt that we have the supermajoritarian political will required to amend

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the Constitution to make them or to propose or ratify a whole new Constitution to incorporate
them.
We also should think about the circumstances that might be propitious for successful
constitutional changes through amendments or conventions and ask whether we find ourselves in
such circumstances. Crisis, failure, dysfunction, or breakdown certainly lead to calls for
fundamental change. Some, invoking Rahm Emanuel, might say, You never want a serious
crisis to go to waste. 56 They might think it imperative to seize the moment and hold a
constitutional convention. But crisis, failure, dysfunction, or breakdown, by themselves, do not
give rise to circumstances that are propitious for good constitutional change. For example, there
probably needs to be some degree of agreement on what the problems are for there to be much
hope of fashioning efficacious solutions or improvements.
I dont think these circumstances are present with respect to dysfunction. I organized a
major symposium at Boston University School of Law entitled Americas Political
Dysfunction: Constitutional Connections, Causes, and Cures, 57 so I take the problem seriously.
Unlike some prior symposia on Americas political dysfunction, which had asked generally
whether America is governable, ours focused on constitutional connections, causes, and cures.
Taking up the forms and manifestations of dysfunction, breakdown, and failure, the symposium
asked: What, if anything, does the Constitution have to do with all this? For example: Are we
experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an
institutional failure, or a failure of policy that may or may not be directly related to the
Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution?
Do they stem from a feature or defect of the Constitution? Do they result from constitutional
requirements? Are they made more likely by our constitutional design? The symposium

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addressed not only whether there are such constitutional connections to and causes of
dysfunction, but also whether any proposed cures would likely alleviate it. For example, some
have proposed amending the Constitution or holding a constitutional convention to adopt a new
one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually
insure that they will fail?
During the symposium, I came to realize that what progressives and liberals lament as
dysfunction, conservatives and libertarians celebrate as the genius of our system. While
progressives and liberals decry all the undemocratic veto points, conservatives and libertarians
celebrate them as the saving features of our Republican form of government (forgive the pun).
Or, to take Citizens United, what many progressives and liberals see as the curse of American
politics, 58 many conservatives and libertarians see as the blessings of liberty and the very
lifeblood of our political system. Out of such circumstances, it is hard to imagine constructive
constitutional amendments emerging. These circumstances look more like fertile ground for what
Adrian Vermeule has called self-defeating proposals. 59 The very circumstances that give rise
to the criticisms and calls for change make it likely that the proposed cures will fail and unlikely
that anything better would come out of a new Constitution.
As discussed above, Levinsons response to dysfunction and the democratic deficit (as he
sees it) is to call for rewriting the Constitution through holding a constitutional convention. My
response to such imperfectionsbeyond arguing for applying a Constitution-perfecting theory,
with an attitude of fidelity to our imperfect Constitutionis to call for rewriting the
constitutional culture, as it were. For a vigorous argument along these lines, read Barbers
important and provocative new book, Constitutional Failure. 60 Barber goes so far as to argue
that the Constitution has failedor is in danger of failingnot because of the institutional

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failure that Levinson and others have lamented, but because of attitudinal failure. Barber
forcefully argues that Madisons strategy of supplying the defects of better motives through
checks and balances and relying upon private incentivesrather than through cultivating the
virtues and attitudes in citizens that are necessary for successful constitutional selfgovernmenthas failed. Linda McClain and I have addressed such matters in Ordered Liberty:
Rights, Responsibilities, and Virtues. There we argue for a mild perfectionism, a formative
project of inculcating civic virtues and cultivating the capacities required for constitutional selfgovernment. 61 Like Barber, I would argue that it is in virtues, attitudes, and capacities, not in the
hard-wired features of the Constitution as such, where the greatest failures of our constitutional
order lie. Barber cites our book as among those sources offering some hope for U.S.
constitutionalism (despite what he sees all around as the evidence of constitutional failure). 62
Here I would make two further points. One, we may not be able to rewrite the
Constitution successfully without rewriting the constitutional culture to begin with
otherwise, good proposals most likely would fail to be made or even if made, would fail to be
adopted. Second, once we rewrite our constitutional cultureso as more effectively to
inculcate the civic virtues and capacities necessary for successful constitutional selfgovernmentwe may not need to rewrite the Constitution, whether by specific amendments or a
constitutional convention. Instead, applying a Constitution-perfecting theory, with an attitude of
fidelity to our imperfect Constitution, we might be able to do well enough by interpreting the
Constitution we have so as to make it the best it can be.
Finally, I want to discuss another strategy for responding to imperfection that I see
operating in our constitutional practice. I have called this strategy, oxymoronically, successful
failures of the American Constitution.63 Again, Barber points out that any theory of

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constitutional failure presupposes a conception of constitutional success and of the preconditions
for constitutional success. 64 We should also recognize the possibility of successful failures.
Sometimes, features of a constitution or constitutional order fail to work as contemplated or
designed, but that failure turns out to be a good thing. For things work differently than
contemplated, but they still work tolerably well or even better, all things considered, than they
would have if they had worked as contemplated. Let me mention five examples of such
successful failures.
The first four examples involve situations where there are two fundamentally different,
yet plausible, interpretations of the Constitutions original meaning or strategy available. I
concede for the sake of argument that one (the weaker interpretation) was the original meaning,
suggest that it has failed in the sense that we have not followed it, and then suggest that the
Constitution has succeeded by following the other (the better interpretation). These examples are
deliberately counterfactual (some readers might say, perversely so) in the sense that I do not
believe that the Constitution, on its best interpretations, was in fact originally designed to operate
in the ways contemplated by them. My point is twofold. First, if the Constitution in fact had
operated in these ways, in accordance with these plausible but weaker interpretations, it might
well have failed by now. And, second, because the Constitution in fact has not operated in these
ways, but rather has operated in accordance with the better interpretations, it has been tolerably
successful. When there are two radically different competing, plausible understandings of the
Constitution, sometimes the better interpretation succeeds, and we avert the failure that might
have ensued had the weaker interpretation been adopted.
First, consider the successful failure of the strategy of enumerated federal powers.
Assume for the sake of argumentwith the Antifederalists and the Federalist Society and the

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Tea Party todaythat the original Constitutions strategy was to conform rigidly to a principle of
limited and enumerated federal powers. It is a good thing that, beginning at least with McCulloch
v. Maryland (1819), 65 we have not rigidly followed such a principle. For under such a scheme
our federal government today surely would be inadequate to pursuing the Constitutions ends
and, indeed, the Constitution might well have failed by now. Even though the Rehnquist Court to
some extent tried to revive this strategy, its federalism counterrevolution seems to have been
partly symbolic and seems to have retreated somewhat in the end. 66 And 9/11, Hurricane
Katrina, and the financial crisis beginning in 2008 demonstrated even to new federalism
Republicans the need for a strong federal government with powers not specifically enumerated in
the Constitution. In upholding the constitutionality of the Affordable Care Act, Chief Justice
Roberts opinion sided with the four dissenters in holding that the Act exceeded Congresss
power to regulate interstate commerce, but still concluded that this exercise of federal power was
permitted by the Taxing Power. 67
Second, consider the successful failure of the strategy of enumerated constitutional rights.
Here assume for the sake of argumentwith the narrow originaliststhat the original
Constitutions strategy was to enumerate all the constitutional rights we have and (contrary to the
implication of the Ninth Amendment) to exclude the protection of rights not enumerated in the
text. It is a good thing that we have not followed such a principle but instead have interpreted our
Constitution to secure many unenumerated basic liberties that are preconditions for a
trustworthy and successful constitutional democracy. 68 For our Constitution and constitutional
law would be far less protective of our basic liberties, and far less worthy of our affirmation and
support, under such an arrangement. Indeed, it might have failed by now.

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Third, and relatedly, consider the successful failure of the judiciary to apply originalism
to limit constitutional interpretation to enforcing the relatively specific original meanings or
understandings of the framers and ratifiers. Assume for the sake of argumentagain, with the
narrow originaliststhat there was an original understanding (or design) that the Constitution
should be interpreted according to the principles of narrow originalism (or according to original
methods originalism as McGinnis and Rappaport conceive them 69). It is a good thing that in
practice courts have eschewed such a programmatic originalism in favor of what Barber and I
have called a fusion of approaches to constitutional interpretation 70 and what Murphy has called
constitutional interpretation as constitutional maintenance. Otherwise, the Constitution might
have failed by now.
Fourth, consider the successful failure of Article V to operate as the exclusive legitimate
means of constitutional change. Assume for the sake of argumentagain, with the narrow
originaliststhat there was an original understanding (or design) that Article V would operate in
this manner. 71 It is a good thing that in practice constitutional change has occurred outside the
formal procedures of Article V. Otherwise, the Constitution surely would have failed by now.
Fifth, consider the successful failure of the Electoral College. I hasten to say that
Levinson puts forward a powerful critique of the Electoral College 72 and that I would support a
constitutional amendment to abolish it or at least to alter it to a system of proportional allocation
of each states electoral votes instead of the largely winner-take-all system we currently have. In
speaking of the successful failure of the Electoral College, I refer to the failure of the Electoral
College to work as might have been contemplated: with electors of each state, exercising
independent judgment, really choosing the president (without being bound by the popular vote of
the state). Instead, as things have turned out, the electors largely ratify the choice of the statewide

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electorate. That is a more defensible state of affairs than contemplated. And so, I would say that,
though the Electoral College is imperfect, it has worked tolerably well on the whole. Let us
remember that the problems of the presidential election controversy leading up to Bush v. Gore
were not in the first instance problems of the Electoral College; instead, they were problems of
the Florida voting system, with its variety of voting machines from county to county and all the
rest of it.
My examples of successful failures acknowledge that, to some extent, one persons
success is anothers failure, and vice versa (or success from one theoretical standpoint is failure
from another). We can also see this phenomenon in the First Things symposium some years ago
in which conservatives lamented the end of democracy 73 through Supreme Court decisions like
Planned Parenthood v. Casey 74 and Romer v. Evans, 75 at the same time that many liberals
celebrated these same decisions as confirming the status of equal citizenship of women and gays
and lesbians in our constitutional democracy. 76 Such is the character of successes, failures, and
successful failures of the American Constitution.
IV. THE ATTITUDE OF FIDELITY TO OUR IMPERFECT CONSTITUTION
As I have acknowledged, the question of whether we should rewrite the Constitution
implicates the question of fidelity to our imperfect Constitution. If we approach the Constitution
with an attitude of fidelity, how should we address failure, dysfunction, injustice, and other
forms of imperfection? Should we call straightaway for a constitutional convention to rewrite the
Constitution? Or should we recognize that the perfect is the enemy of the good (and even the
merely adequate) and get on with the work of interpreting the Constitution so as to make it the
best it can be, so as to redeem its promises the best we can? If we approach the Constitution with
an attitude of fidelity, we might embark on the latter course, in a constructive spirit, with

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humility, and with commitment to building out our Constitution with responsibility and integrity
so as to mitigate or overcome its imperfections.
Let us posit, at least provisionally, that we should approach our imperfect Constitution
with an attitude of fidelity. If so, how should we respond to the question whether it is time to
rewrite the Constitution? First, we should approach the Constitution with an attitude of
responsibility and integritywe are not going to avoid responsibility for our constitutional
choices by taking refuge in originalism, saying, We didnt do it, the framers did it and all that
bunk. Furthermore, if we approach the Constitution with an attitude of responsibility and
integrity, we will be committed to interpreting and building it out over time so as to mitigate its
imperfections.
If we approach the questionIs it time to rewrite the Constitution?with an attitude of
fidelity to our imperfect Constitutionseeking to interpret it so as to make it the best it can be
the question is not, could I rewrite an ideal Constitution that would be normatively superior to
the U.S. Constitution. Instead, the question is, would we have good reason to believe (or hope)
that the new Constitution that would emerge through rewriting it would be normatively superior
to our present Constitution when understood in its best lightor perhaps in some other way be
better suited to us as a self-governing people.
In grappling with this question, lets consider six features that I believe an ideal
Constitution would contain, and consider the prospects for attaining those through rewriting by
constitutional convention or constitutional amendmentas compared with the prospects for
attaining them through our constitutional practice without formal amendment.
(1) Constitution as a charter of positive benefits, not merely a charter of negative
liberties. Yet the U.S. Constitution itself is best understood as a charter of positive benefits, not

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merely a charter of negative liberties. Barber and I have argued to this effect in Constitutional
Interpretation: The Basic Questions. 77 Linda McClain and I likewise have developed such an
understanding in Ordered Liberty: Rights, Responsibilities, and Virtues. 78 If only we had the
political will, we could already interpret the U.S. Constitution in this way, as scholars including
Charles Black, Barber, Cass Sunstein, Frank Michelman, and Joseph Fishkin and William
Forbath have argued. 79 If we dont have the political will to interpret the present Constitution as
a charter of positive benefits, we most likely dont have the political will to adopt a new
Constitution with those commitments clearly expressed.
(2) Replacement of the Electoral College with some form of election of the president by
direct popular vote. Yet we already have a workaround available to accomplish this change
through state compacts whereby states agree to cast their electoral votes for the candidate who
receives a majority of the national popular vote 80if only the people in states responsible for a
total of 270 electoral votes had the political will to adopt it. If we dont have the political will to
effectuate this workaround, I see no reason to believe that we (the small states in particular)
would have the political will to adopt a new system in which the small states would relinquish
their disproportionate advantage in the Electoral College.
(3) An Equal Protection Clause embodying an anti-caste principle, not an anticlassification (or neutrality) principle. Again, if we had the political will, over time, we could
attain this under the present Constitution. In much of our recent history, four out of nine justices
of the U.S. Supreme Court were committed to some form of anti-caste principle, not an anticlassification (or neutrality) principle. If we dont have the political will to attain this
interpretation of the present Equal Protection Clause, I dont think it likely that we would have
the political will to do so through a constitutional amendment or a new Constitution.

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(4) A right to equal participation and an equal voice in the political process under the
Equal Protection Clause or as a precondition for a republican form of government. Realizing
this right would require throwing out Citizens United and Buckley, along with similar cases. But
lets remember, in recent years four of the justices of the Supreme Court have argued that the
present Constitution protects something like that right. Moreover, we could derive such an
understanding through a robust interpretation of the commitment to a republican form of
government (recall Reynolds v. Sims, which implicitly derived such a right to equal participation
and equal voice in the political process from a political theory of a republican form of
government 81). If we had the political will, we could instantiate such rights under the present
Constitution. If we dont have the political will to do that, I dont see how we would have the
political will to accomplish it through constitutional amendment or constitutional convention.
(5) A conception of federalism with no judicially enforceable state autonomy limits on
plenary federal powersno unenumerated limits on such powers. But wait, until recently,
that was the view of the Supreme Court, for example, in Garcia. 82 And that has been the view of
four justices in the leading decisions of the Rehnquist Court deriving such unenumerated limits
on federal power, all 5-4 decisions, for example, New York, Lopez, Printz, Morrison. 83 I repeat
my refrain: If we had the political will, we could re-instantiate such a conception of federal
powers under the present Constitution. If we dont have the political will to do that, I dont see
how we would have the political will to accomplish it through constitutional amendment or
constitutional convention.
(6) A right to bear arms that is not absolute but admits of reasonable regulations. Well,
that was how the Supreme Court interpreted our Constitution until recently, in Heller (2008), and
four justices in that case clearly continued to hold that interpretation. Heller itself arguably is

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open to this interpretation, since Justice Scalia said that certain traditional gun control regulations
were presumptively valid. 84 In any case, if we dont have the political will, over time, to
prevail with that interpretation of the present Constitution, I doubt that we have the political will
to adopt such a provision in a constitutional amendment or a new Constitution. We would need
to rewrite our constitutional culture with respect to guns in order to have a realistic chance of
adopting such a provision.
In short, with all six of these features that an ideal constitution would contain, we already
could interpret the U.S. Constitution to contain themif not perfectly, at least approximately or
tolerably wellif only we had the political will and commitment to do so. With each, the
Constitutionon its best understandingalready contains those features. And if we lack the
political will to attain those interpretations, there is little or no reason to expect with any
confidence that we could rewrite the Constitution so as clearly to adopt them.
What, then, to do? It seems that the best we can do is to interpret the Constitution with an
attitude of fidelity: with a commitment to interpreting it so as to make it the best it can be, so as
to redeem its promises.
V. IS THE PREEMINENT CONSTITUTIONAL VIRTUE FIDELITY TO OUR IMPERFECT CONSTITUTION
OR THE CAPACITY TO MAKE AND REFORM CONSTITUTIONS?

At the same time, if we take the view that the preeminent constitutional virtue is not
fidelity to a given constitution but the moral and intellectual capacity to make and reform
constitutionsas Barber, invoking Murphy, has argued in Constitutional Failure 85we might
more readily conclude that we should rewrite the Constitution. Or at any rate that we should
rewrite the constitutional culture in order to cultivate liberal virtues (as Stephen Macedo has
argued) and foster the capacities for constitutional self-government (as McClain and I have

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argued). 86 These virtues and capacities may be necessary to supply the defect of better
motivescontrary to Madisons strategy of checks and balances and private incentivesif we
are to attain or maintain a Constitution that would be worthy of our fidelity. As mentioned above,
one way of understanding Levinsons and Ackermans objections to Article Vs obduracy to
constitutional change is that it has sapped or demoralized popular sovereignty, understood as the
capacity of We the People to make and reform the Constitution. I shall consider a Jeffersonian
argument in this vein for rewriting the Constitutionone rooted in popular sovereignty rather
than prudential judgments about likely outcomes that might avert constitutional failure, alleviate
dysfunction, or mitigate democratic shortcomings.
Let us recall that in Marbury v. Madison, Chief Justice Marshall wrote: A Constitution
that is, The exercise of [the] original right [to establish a Constitution]is a very great
exertion; nor can it, nor ought it, to be frequently repeated. 87 I, like Marshall, conceive the
establishment of the Constitution as a very great exertion not to be frequently repeated. For I,
like Marshall, conceive the Constitution as a charter of abstract principles and ends, not a code of
detailed rules or a deposit of concrete historical practices. In this respect, we disagree
fundamentally with most originalists.
But I must acknowledge that there is a Jeffersonian tradition that rejects the Marshallian
view that adoption of a Constitution is a very great exertion that ought not often to be repeated.
(Even under the Marshallian view, adopting a new Constitution after 225 years hardly seems to
be repeating it often.) The Jeffersonian argument would entail letting the people frame a new
Constitution from time to time, even if we think the present Constitution has not failed but to the
contrary is successful or at least adequate. Doing so would be an exercise not only in responsible

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self-government but also in maintaining the critical democratic capacities to make and reform
constitutions, to recall Murphy and Barber.
Arguably, on this view, even if a worse Constitution were to come out of the process, that
would be as it should bethe people would be properly self-governing and would be
maintaining their capacities for making and reforming constitutions. On this view, the people
have the right to make the Constitution anew from time to time, even if the new constitution
turns out to be normatively inferior to the extant Constitution.
In response, lets be clear about two things. Under this Jeffersonian scenario, we have
forsaken fidelity to our imperfect Constitution for fidelity to a principle of democracy or popular
sovereignty that is not embodied in our Constitution. Under this scenario, our deeper
commitment is to a normative vision of democracy or popular sovereignty. That commitment
trumps any aspiration to fidelity in interpreting our imperfect Constitution so as to make it the
best it can be, so as to redeem its promises. This recalls what I suggested above about Levinsons
criticism of our undemocratic Constitution.
Moreover, this Jeffersonian scenario overlooks or denies the crucial insights of
Ackerman, that We the People to some degree have lived up to the responsibilities of popular
sovereignty by amending the Constitution outside Article V: rewriting it, if you will. Ackerman
argues that the very possibility of popular sovereignty requires an account like his. And, once we
adopt his account, we see that We the People have not been constitutional Pygmies as
compared with the Giants who walked the earth during the Founding and Reconstruction after
all, but have exercised the rights and responsibilities of constitutional self-government in our
lifetimes. 88 Just not primarily through the formal procedures of Article V. In Chapter 7, I have
interpreted Ackerman as arguing for fidelity to our living constitutionwhat the President,

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Congress, the Supreme Court, and ultimately the people themselves, or We the People, have
hammered out through his collaborative model of popular sovereignty, not We the Judges.
An attitude of fidelity, once again, fortifies us in sticking with and working with our
imperfect Constitution rather than formally rewriting it altogether. To some degree, through
Ackermans theory, we realize the Jeffersonian aspiration to popular sovereignty. And lets recall
that likewise Strauss argues that his living constitutionalist theory of common law constitutional
interpretation better realizes the Jeffersonian principle than does originalism. 89 And Ackermans
theory, while ostensibly a theory of constitutional change, brings us back to an attitude of
fidelityfidelity to our changing, living Constitution (which I have recast as a popular
sovereignty-perfecting moral reading).
VI. CONCLUSION: IS IT TIME TO REWRITE THE CONSTITUTION?
Let me recapitulate. If we adopt and maintain an attitude of fidelity to our imperfect
Constitution, we may conclude that it unnecessary formally to rewrite the Constitution. We
would acknowledge or insist that in some ways we already do rewrite it informallyfor
example, (1) through Strauss-style common law constitutional interpretation; (2) through
Ackerman-style constitutional change outside the formal procedures of Article V; (3) through
Dworkin-style or Barber and Fleming-style moral readings of the Constitution to make it the best
it can be; and (4) through Balkin-style moral readings of the Constitution to redeem its promises.
Those who maintain an attitude of fidelity to our imperfect Constitution might believe that the
perfect is the enemy of the good (and the merely adequate) and accordingly that we should not
rewrite the Constitution unless we have good reason to believe (or hope) that something better
might come out of this processespecially if there is good reason to believe that calls to rewrite
the Constitution are what Vermeule has called self-defeating proposals: the very circumstances

315
that give rise to the criticisms and calls for change make it unlikely that they will be adopted or
will work. Furthermore, if we adopt and maintain an attitude of fidelity to our imperfect
Constitution, we should recognize the need to rewrite the constitutional culture the better to
secure constitutional democracy: to cultivate the civic virtues and foster the capacities needed to
maintain constitutional self-government.
On the other hand, those who are more committed to a Jeffersonian principlecome
what maymay want to rewrite the Constitution, on principle. Such Jeffersonians may be
primarily committed to fidelity to principles of popular sovereignty or self-government, not to
fidelity to our imperfect Constitution itself.
Applying a Constitution-perfecting theory, with an attitude of fidelity to our imperfect
Constitution, we may be able to interpret it so as to make it the best it can beso as to make it
worthy of our fidelity.

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NOTES TO CHAPTER EIGHT
1. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES
WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
2. LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE (2012); Louis Michael
Seidman, Lets Give Up on the Constitution, NEW YORK TIMES, Dec. 31, 2012, A19.
3. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
4. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014) [hereinafter CIVIL
RIGHTS REVOLUTION].
5. RICHARD A. EPSTEIN, HOW PROGRESSIVES REWROTE THE CONSTITUTION (2006).
6. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW
(1990); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
(Amy Gutmann ed., 1997).
7. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION (2004).
8. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY
(2006).
9. See Colloquy, Fidelity as Integrity, 65 FORDHAM LAW REVIEW 1357, 1358 (1997) (statement
of Sanford Levinson).
10. See, e.g., LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 155-66.
11. RONALD DWORKIN, FREEDOMS LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION (1996); LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF
AMERICAN CONSTITUTIONAL PRACTICE (2004); SOTIRIOS A. BARBER & JAMES E. FLEMING,
CONSTITUTIONAL INTERPRETATION: THE BASIC QUESTIONS (2007); STRAUSS, THE LIVING
CONSTITUTION, supra note 3; JACK M. BALKIN, LIVING ORIGINALISM (2011).

317

12. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); DeShaney v.
Winnebago County, 489 U.S. 189 (1989); United States v. Lopez, 514 U.S. 549 (1995); and
District of Columbia v. Heller, 554 U.S. 570 (2008).
13. SOTIRIOS A. BARBER, CONSTITUTIONAL FAILURE (2014).
14. Dandridge v. Williams, 397 U.S. 471 (1970); San Antonio v. Rodriguez, 411 U.S. 1 (1973);
Harris v. McRae, 448 U.S. 297 (1980); DeShaney v. Winnebago County Dept of Social Servs.,
489 U.S. 189 (1989).
15. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Plessy v. Ferguson, 163 U.S. 537
(1896); Korematsu v. United States, 323 U.S. 214 (1944).
16. Slaughter-House Cases, 83 U.S. 36 (1872); Bowers v. Hardwick, 478 U.S. 186 (1986).
Fortunately, Bowers was overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
17. Buckley v. Valeo, 424 U.S. 1 (1976); Citizens United.
18. See CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (William N. Eskridge Jr. &
Sanford Levinson eds., 1998), in particular, James E. Fleming, Constitutional Tragedy in Dying:
Or Whose Tragedy Is It, Anyway? (supra, at 162). I have drawn the opening paragraph in this
section from that essay.
19. BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND
THE RISE OF PRESIDENTIAL DEMOCRACY (2005);
THE AMERICAN REPUBLIC (2010);

BRUCE ACKERMAN, THE DECLINE AND FALL OF

RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE?

PRINCIPLES FOR A NEW POLITICAL DEBATE (2006); ALAN WOLFE, DOES AMERICAN DEMOCRACY
STILL WORK? (2006); LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1; SANFORD
LEVINSON, FRAMED: AMERICAS 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (2012);
and BARBER, CONSTITUTIONAL FAILURE, supra note 13.

318

20. JOHN DEAN, BROKEN GOVERNMENT: HOW REPUBLICAN RULE DESTROYED THE LEGISLATIVE,
EXECUTIVE, AND JUDICIAL BRANCHES (2007); THOMAS MANN & NORMAN ORNSTEIN, THE
BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK
(2006); THOMAS MANN & NORMAN ORNSTEIN, ITS EVEN WORSE THAN IT LOOKS: HOW THE
AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM (2012);
and ROBERT KUTTNER, THE SQUANDERING OF AMERICA: HOW THE FAILURE OF OUR POLITICS
UNDERMINES OUR PROSPERITY (2007). Before this recent spate of books, there was: MARK
BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998);
and JOHN FINN, CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW (1991). I
should also mention two works that prefigure the discussion of failure today. WILLIAM F. HARRIS
II, THE INTERPRETABLE CONSTITUTION (1993); SOTIRIOS A. BARBER, ON WHAT THE
CONSTITUTION MEANS (1984).
21. 531 U.S. 98 (2000).
22. See, e.g., DWORKIN, IS DEMOCRACY POSSIBLE HERE?, supra note 19, at 52-55; FLEMING,
SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 226.
23. See WOLFE, DOES AMERICAN DEMOCRACY STILL WORK?, supra note 19.
24. See MANN & ORNSTEIN, BROKEN BRANCH, supra note 20.
25. Christopher L. Eisgruber, Comments for Panel on Philosophical and Theoretical
Perspectives on Constitutional Failure and Success, presented at the conference on The Limits
of Constitutional Democracy, Princeton University, February 15, 2008.
26. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at 5, 115 (criticizing The Federalist. No.
51, at 322 (James Madison) (Clinton Rossiter, ed., 1961)).
27. I want to thank Steve Macedo and Jeff Tulis for pressing this possibility.

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28. LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 22-24, 167-80.

29. Id. at 94. See also Sanford Levinson & Jack M. Balkin, Constitutional Crises, 157
UNIVERSITY OF PENNSYLVANIA LAW REVIEW 707 (2009).
30. I say that this analysis could have been written at any time during the twentieth century
because I recognize that some of the features of our practice that he criticizes, such as policybased presidential vetoes and filibusters in the Senate, developed over time.
31. See LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 81-97.
32. Id. at 181.
33. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 4, 16, 210-11.
34. Henry P. Monaghan, Our Perfect Constitution, 56 NEW YORK UNIVERSITY LAW REVIEW 353
(1981); Christopher L. Eisgruber, Justice and the Text: Rethinking the Constitutional Relation
between Principle and Prudence, 43 DUKE LAW JOURNAL 1, 7 (1993).
35. DWORKIN, FREEDOMS LAW, supra note 11, at 38; DWORKIN, IS DEMOCRACY POSSIBLE
HERE?, supra note 19.
36. WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST
POLITICAL ORDER (2007).
37. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at 82-83.
38. WALTER F. MURPHY, JAMES E. FLEMING, SOTIRIOS A. BARBER, & STEPHEN MACEDO,
AMERICAN CONSTITUTIONAL INTERPRETATION 1-17 (5th ed. 2014).
39. MURPHY, CONSTITUTIONAL DEMOCRACY, supra note 36, at 460-96.
40. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 11, at xiii, 155-70;
FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 15-16, 226-27.

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41. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 70-71, 74, 167-70;
James E. Fleming, The Constitution Outside the Courts, 86 CORNELL LAW REVIEW 215 (2000);
James E. Fleming, Judicial Review without Judicial Supremacy: Taking the Constitution
Seriously Outside the Courts, 73 FORDHAM LAW REVIEW 1377 (2005).
42. JAMES E. FLEMING & LINDA C. MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES,
AND VIRTUES (2013).

43. See FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 20-21 (criticizing
BORK, TEMPTING OF AMERICA, supra note 6, at 143-60, and Antonin Scalia, Originalism: The
Lesser Evil, 57 UNIVERSITY OF CINCINNATI LAW REVIEW 849, 862-64 (1989)).
44. SCALIA, A MATTER OF INTERPRETATION, supra note 6, at 40-41.
45. MURPHY, CONSTITUTIONAL DEMOCRACY, supra note 36, at 460-96.
46. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at ; MURPHY, CONSTITUTIONAL
DEMOCRACY, supra note 36, at 17-19, 497-529.
47. LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 159-66; ACKERMAN, CIVIL
RIGHTS REVOLUTION, supra note 4, at 16-17, 19.
48. MURPHY, CONSTITUTIONAL DEMOCRACY, supra note 36, at 18-19, 516-21.
49. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 10, 73-74.
50. MURPHY, CONSTITUTIONAL DEMOCRACY, supra note 36, at 506-08.
51. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 10, 73-74.
52. FLEMING & MCCLAIN, ORDERED LIBERTY, supra note 42, at 3-4.
53. RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT (Sanford Levinson ed., 1995).

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54. Charles L. Black, Jr., On Reading and Using the Ninth Amendment, in I THE RIGHTS
RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 337, 343
(Randy Barnett ed., 1989).
55. LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 5-6.
56. Gerald F. Seib, In Crisis, Opportunity for Obama, WALL STREET JOURNAL, Nov. 21, 2008
(quoting Rahm Emanuel at the Wall Street Journal CEO Council),
http://online.wsj.com/articles/SB122721278056345271.
57. Symposium: Americas Political Dysfunction: Constitutional Connections, Causes, and
Cures, 94 BOSTON UNIVERSITY LAW REVIEW 575 (2014).
58. See, e.g., Ronald Dworkin, The Curse of American Politics, THE NEW YORK REVIEW OF
BOOKS, October 17, 1996, at 19-24. For Dworkins criticism of Citizens United along these lines,
see Ronald Dworkin, The Decision That Threatens Democracy, THE NEW YORK REVIEW OF
BOOKS, May 13, 2010, at 63-67; Ronald Dworkin, The Devastating Decision, THE NEW YORK
REVIEW OF BOOKS, Feb. 25, 2010, at 39.
59. Adrian Vermeule, Self-Defeating Proposals, 75 FORDHAM LAW REVIEW 631 (2006).
60. BARBER, CONSTITUTIONAL FAILURE, supra note 13.
61. FLEMING & MCCLAIN, ORDERED LIBERTY, supra note 42, at 3-4.
62. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at 142 (citing FLEMING & MCCLAIN,
ORDERED LIBERTY, supra note 42).
63. Here I draw from my analysis in James E. Fleming, Successful Failures of the American
Constitution, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY (Jeffrey K. Tulis & Stephen
Macedo eds., 2010).
64. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at 26-27.

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65. 17 U.S. 316 (1819).

66. See, e.g., MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 35, 56-57 (2003).
67. National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012).
68. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 90-97.
69. JOHN O. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION
116-38 (2013).
70. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 11, at 189-92.
71. MCGINNIS & RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION, supra note 69, at 8199.
72. LEVINSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 1, at 81-97.
73. The 1996 First Things symposium is reprinted in THE END OF DEMOCRACY: THE
CELEBRATED FIRST THINGS DEBATE WITH ARGUMENTS PRO AND CON AND THE ANATOMY OF A
CONTROVERSY (Mitchell S. Muncy & Richard John Neuhaus eds., 1997).
74. 505 U.S. 833 (1992).
75. 517 U.S. 620 (1996).
76. See, e.g., FLEMING, SECURING CONSTITUTIONAL DEMOCRACY, supra note 8, at 2-4, 96, 192.
77. BARBER & FLEMING, CONSTITUTIONAL INTERPRETATION, supra note 11, at 35-55.
78. FLEMING & MCCLAIN, ORDERED LIBERTY, supra note 42, at 114-15.
79. SOTIRIOS A. BARBER, WELFARE AND THE CONSTITUTION (2003); CASS R. SUNSTEIN, THE
SECOND BILL OF RIGHTS (2004); Charles L. Black, Jr., Further Reflections on the Constitutional
Justice of Livelihood, 86 COLUMBIA LAW REVIEW 1103 (1986); Joseph Fishkin & William E.
Forbath, The Anti-Oligarchy Constitution, 94 BOSTON UNIVERSITY LAW REVIEW 671 (2014);

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Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASHINGTON

UNIVERSITY LAW QUARTERLY 659.
80. See EVERY VOTE EQUAL: A STATE-BASED PLAN FOR ELECTING THE PRESIDENT BY NATIONAL
POPULAR VOTE (4th ed., 2013).
81. 377 U.S. 533 (1964).
82. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
83. New York v. United States, 505 U.S. 144 (1992); United States v. Lopez, 514 U.S. 549
(1995); Printz v. United States, 521 U.S. 898 (1997); United States v. Morrison, 529 U.S. 598
(2000).
84. District of Columbia v. Heller, 554 U.S. 570, 626-27 n.26 (2008). For analysis, see James E.
Fleming & Linda C. McClain, Ordered Gun Liberty: Rights with Responsibilities and
Regulation, 94 BOSTON UNIVERSITY LAW REVIEW 849 (2014).
85. BARBER, CONSTITUTIONAL FAILURE, supra note 13, at 111 (citing MURPHY,
CONSTITUTIONAL DEMOCRACY, supra note 36, at 15-16).
86. STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL
CONSTITUTIONALISM (1990); STEPHEN MACEDO, DIVERSITY AND DISTRUST: CIVIC EDUCATION IN
A MULTICULTURAL DEMOCRACY (2000);

FLEMING & MCCLAIN, ORDERED LIBERTY, supra note

42, at 3-4.
87. Marbury v. Madison, 5 U.S. 137, 176 (1803).
88. ACKERMAN, CIVIL RIGHTS REVOLUTION, supra note 4, at 16, 311.
89. STRAUSS, THE LIVING CONSTITUTION, supra note 3, at 99-114.

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EPILOGUE
Fidelity to Our Imperfect Constitution
I shall close by reiterating three reasons for embracing a Constitution-perfecting theory
that aspires to interpret our imperfect Constitution in a manner that might deserve our fidelity.
The first reason is hortatory: my Constitution-perfecting theory exhorts judges, elected officials,
and citizens to reflect upon and deliberate about our deepest principles and highest aspirations as
a people. It does not conceive the commitment to fidelity to the Constitution as commanding us
to follow the authority of the past. In a word, it rejects the authoritarianism of originalism,
narrow or broad, as inappropriate and unjustifiable in a constitutional democracy. It exhorts us to
conceive fidelity in terms of honoring our aspirational principles rather than merely following
our historical practices and concrete original meanings, which no doubt have fallen short of those
principles.
The second, related reason is critical: my Constitution-perfecting theory encourages,
indeed requires, a reflective, critical attitude toward our history and practices rather than
enshrining them. It recognizes that our principles may fit and justify most of our practices or
precedents but that they will criticize some of them for failing to live up to our constitutional
commitments to principles such as liberty and equality. Put another way, my theory does not
confuse or conflate our principles and traditions with our history, our aspirational principles with
our historical practices. Again, it recognizes that fidelity to the Constitution requires honoring
our aspirational principles, not following our historical practices and concrete original meanings.
That is, fidelity to the Constitution requires that we disregard or criticize certain aspects of our
history and practices in order to be faithful to the principles embodied in the Constitution.

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The final reason is justificatory: my Constitution-perfecting theory, because it
understands that the quest for fidelity in interpreting our imperfect Constitution exhorts us to
interpret it so as to make it the best it can be, gives us hope of interpreting our imperfect
Constitution in a manner that may deserve our fidelity, or at least may be able to earn it. It does
not enshrine an imperfect Constitution that does not deserve our fidelity.