Building on the work of Ronald Dworkin and other scholars, Fleming (Boston Univ. School of Law) challenges the intellectual honesty and practical vitality of originalism. More importantly, though, Fleming develops a positive case for living constitutionalism as a theory that reflects the Constitutions aspirational spirit.

S. B. Lichtman, Shippensburg University, Choice: US Politics

James Fleming exhorts us to recognize both the good and the bad in our nation's history, to honor the Constitution's aspirational commitments, and to realize our country's potential for a more perfect union. This remarkable book is a powerful statement of Fleming's moral reading of the Constitution and an excellent guide to contemporary constitutional theory."
Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
Yale University Law School

Fidelity to Our Imperfect Constitution surveys the landscape of contemporary American constitutional theory with critical imagination and insight. In addition to mounting forceful attacks on the 'originalist' and 'living constitutionalist' approaches that have recently dominated the field, James Fleming emerges in this book as the ablest current defender of a 'moral reading' approach (long championed by Ronald Dworkin) that calls upon judges to make candid moral judgments in interpreting the Constitution that we have, not fashioning a new one."
Richard Fallon
Ralph S. Tyler, Jr. Professor of Constitutional Law
Harvard University Law School

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In Fidelity to Our Imperfect Constitution, James Fleming argues persuasively against all forms of originalism: 'old time originalism,' which ties constitutional meaning to the specific and concrete applications envisioned by framers or ratifiers, 'new originalism,' which allows for the Courts to 'construct' a constitutional law as well as determine constitutional meaning, and 'living originalism' which looks for originalist meanings that are sufficiently abstract so as to accommodate contemporary decisions that are at odds with, or simply beyond the purview of the Constitution's framers. He presents in their stead a vigorous defense of a moral and philosophical approach to Constitutional meaning. The book is a welcome elucidation of neo-Dworkinian constitutional analysis, from a generous and thoughtful critic of our seeming rush to the false comfort of the authority of the Constitution's framers."
Robin West
Frederick Haas Professor of Law
Georgetown University Law Center

In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.
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Many conservative "originalists" contend that the only way to be faithful to the Constitution is to follow the relatively specific original meanings and expectations of the framers and ratifiers.
Acknowledgments ; 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 ; Chapter 3. Fidelity, Change, and the Good Constitution ; Part II. A Moral Reading or Philosophic Approach ; Chapter 4. Fidelity Through a Moral Reading or Philosophic Approach ; Chapter 5. The Place of Precedent and Common Law Constitutional Interpretation ; Part III. Living Originalism and Living Constitutionalism as Moral Readings ; Chapter 6. Fidelity Through Living Originalism: Redeeming the Promises of the Constitution ; Chapter 7. Fidelity to Our Living Constitution: Honoring the Achievements of We the People ; Part IV. Fidelity to Our Imperfect Constitution ; Chapter 8. Is It Time to Rewrite the Constitution? Fidelity Through Perfecting Our Imperfect ; Constitution ; Epilogue ; Index
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"James Fleming exhorts us to recognize both the good and the bad in our nation's history, to honor the Constitution's aspirational commitments, and to realize our country's potential for a more perfect union. This remarkable book is a powerful statement of Fleming's moral reading of the Constitution and an excellent guide to contemporary constitutional theory." --Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School "Fidelity to Our Imperfect Constitution is an impeccably fair-minded and erudite tour of modern constitutional theory. James Fleming shows that, notwithstanding its improvements over the reactionary 'old' originalism, the ostensibly 'new' originalism that has emerged in recent decades remains deeply flawed. Fleming picks up the torch laid down by the late great Ronald Dworkin as the leading champion of a moral reading of the Constitution. He is a worthy successor." --Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell University Law School "Fidelity to Our Imperfect Constitution surveys the landscape of contemporary American constitutional theory with critical imagination and insight. In addition to mounting forceful attacks on the 'originalist' and 'living constitutionalist' approaches that have recently dominated the field, James Fleming emerges in this book as the ablest current defender of a 'moral reading' approach (long championed by Ronald Dworkin) that calls upon judges to make candid moral judgments in interpreting the Constitution that we have, not fashioning a new one." -Richard Fallon, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School "In Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms James Fleming argues persuasively against all forms of originalism. He presents in their stead a vigorous defense of a moral and philosophical approach to Constitutional meaning. The book is a welcome elucidation of neo-Dworkinian constitutional analysis, from a generous and thoughtful critic of our seeming rush to the false comfort of the authority of the Constitution's framers." --Robin West, Frederick Haas Professor of Law, Georgetown University Law Center "Building on the work of Ronald Dworkin and other scholars, Fleming (Boston Univ. School of Law) challenges the intellectual honesty and practical vitality of originalism. More important, though, Fleming develops a positive case for living constitutionalism as a theory that reflects the Constitution's aspirational spirit. Recommended." -S. B. Lichtman, Shippensburg University, hoice
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Selling point: Systematically develops a moral reading or philosophic approach to constitutional interpretation Selling point: Provides vigorous but fair criticisms of many new versions of originalism and living constitutionalism Selling point: Constructively recasts the most sophisticated versions of living constitutionalism, on more defensible grounds, as moral readings of the Constitution Selling point: Concise while also comprehensive in its analysis of competing originalist and living constitutionalist approaches to constitutional interpretation Selling point: Makes complex arguments accessible to the informed general reader as well as academics
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James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He authored Ordered Liberty: Rights, Responsibilities, and Virtues (2013, with Linda C. McClain); Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007, with Sotirios A. Barber); Securing Constitutional Democracy: The Case of Autonomy (2006); and American Constitutional Interpretation (5th ed., 2014, with Walter F. Murphy, Sotirios A. Barber & Stephen Macedo). He is the former Editor of Nomos, the annual book of the American Society for Political and Legal Philosophy.
Les mer
Selling point: Systematically develops a moral reading or philosophic approach to constitutional interpretation Selling point: Provides vigorous but fair criticisms of many new versions of originalism and living constitutionalism Selling point: Constructively recasts the most sophisticated versions of living constitutionalism, on more defensible grounds, as moral readings of the Constitution Selling point: Concise while also comprehensive in its analysis of competing originalist and living constitutionalist approaches to constitutional interpretation Selling point: Makes complex arguments accessible to the informed general reader as well as academics
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Produktdetaljer

ISBN
9780199793372
Publisert
2015
Utgiver
Vendor
Oxford University Press Inc
Vekt
522 gr
Høyde
236 mm
Bredde
152 mm
Dybde
23 mm
Aldersnivå
P, 06
Språk
Product language
Engelsk
Format
Product format
Innbundet
Antall sider
264

Forfatter

Biografisk notat

James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He authored Ordered Liberty: Rights, Responsibilities, and Virtues (2013, with Linda C. McClain); Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007, with Sotirios A. Barber); Securing Constitutional Democracy: The Case of Autonomy (2006); and American Constitutional Interpretation (5th ed., 2014, with Walter F. Murphy, Sotirios A. Barber & Stephen Macedo). He is the former Editor of Nomos, the annual book of the American Society for Political and Legal Philosophy.