Bruce Frohnen’s essay confirms my analysis of the profound differences between our books. In this response, I point out three ways he force-fits my arguments into a conservative script about “Progressives” and the vilification of the founding that is alien to my project.

First, Frohnen force-fits my moral reading, with its conception of fidelity as honoring the aspirational principles embodied in the Constitution, into a conservative script about progressive living constitutionalism as rejecting fidelity to the Constitution. Progressive living constitutionalism disavows any aspiration to fidelity—it is too forward looking for that—as well as any aspiration to a moral reading—it is too pragmatic to abide any commitment to coherence and integrity in building out the best understanding of our constitutional commitments over time. Frohnen brushes these differences aside with the conclusory assertion that “Fleming’s progressive project adds little more than a note of caution to old-fashioned living constitutionalism” (p. 5). With all due respect, my moral reading is as different from “old-fashioned living constitutionalism” as it is from old originalism!

Second, Frohnen strains to force-fit my book into a conservative script about progressives vilifying the Founders. He recasts my reference to “racist, sexist, and heterosexist expectations and presuppositions” that might have been “reflected in the common law and statute books in 1868” (p. 63) as a vilification of “text-based, original meanings” of the Constitution itself (p. 3). And he attributes to me, without any basis, a view that the Founders’ “sins render their work suspect” (p. 5). Indeed, Frohnen is so intent on force-fitting my book into this conservative script that he literally puts words in my mouth. He writes: “Fleming argues that only a ‘Constitution-perfecting theory’. . . can save us from the status of ‘pygmies’ bowing down before fatally flawed ancestors (pp. 189, 191).” Yet contrary to Frohnen’s quotation marks, nowhere on pages 189 or 191 do I use the word “pygmies.” (To be sure, I quote Bruce Ackerman’s usage of that term on pages 143, 148, 154, and 185 in summarizing his argument regarding the New Deal amending the Constitution outside the formal amending procedures of Article V, but I do not endorse Ackerman’s usage or his argument. Here again, Frohnen is force-fitting my argument into his script about “Progressivism” that I do not exemplify or accept.) Nor do I say that the Founders are “fatally flawed.” To the contrary, I argue that my moral reading presents “a more ennobling view of the founders” than do forms of originalism that attribute to them “an interest in imposing their will on their posterity” (p. 191). My argument is not that the Founders were sinful or fatally flawed but that they were wise, took the long view, and established a Constitution that is a scheme of abstract rights and powers to be built out over time on the basis of experience and reasoned judgments about the best understanding of our commitments.

Finally, Frohnen force-fits my project—which begins where we are today and seeks to construct the normative theory that best fits and justifies our actual constitutional practice—into a conservative narrative about a “radical claim” to make the Constitution “confirm to progressive aspirations in support of progressive policies.” With misreadings this pervasive, I can only ask the reader to read my book and judge whether I make good on my aspiration to fidelity to our imperfect Constitution.