Methods of constitutional interpretation have multiplied in recent decades. Self-conscious “living constitutionalism,” noninterpretivism, and other methods eschewing direct reliance on the Constitution’s text have been overshadowed by common law constitutionalism, moral/philosophical readings rooted in the work of Ronald Dworkin, and a plethora of “originalisms” spanning the distance from late Justice Antonin Scalia to postmodernist Jack Balkin. In this book, James Fleming seeks to critique and reinterpret these various methods and their assumptions. His goal is to reconcile most nonoriginalist methods to his own Dworkin-influenced reading and in opposition to any traditional, “authoritarian” form of originalism.

Of central concern to Fleming is originalism’s perceived occupation of the high ground of fidelity to our fundamental law and frame of government. His solution? Lawyers and academics must reconceptualize fidelity (and that to which it is owed) so that they can defeat, in the court of legal and academic opinion, “authoritarian” originalism—that focus on text-based, original meanings Fleming portrays as a backward-looking ideology upholding “racist, sexist, and heterosexist expectations and presuppositions” (p. 63). According to the author, constitutional interpreters should instead engage in “a moral reading or philosophic approach that conceives fidelity as honoring our commitments to abstract aspirational principles” (p. xi).

Part I of Fidelity to Our Imperfect Constitution outlines recent attempts to “save” originalism by expanding its list of authoritative texts and interpreting constitutional language at a higher level of abstraction. Fleming notes that this loose originalism risks making all of us into originalists, thereby jettisoning any value to the term. As to more traditional (“authoritarian”) originalists such as John McGinnis and Michael Rappaport, Fleming accuses them of supporting regressive policies on the basis of a false, if not bad faith, argument that constitutional terms enshrine concrete historical meanings and precedents.

The second part is Fleming’s attempt to reclaim the notion of “fidelity” for nonoriginalists. He focuses especially on David Strauss’s “common law constitutionalism.” The goal is to think “self-critically about the best that the law could mean within the limits of the law’s language and what the community will accept” (p. 80). Here, he assumes that 1) “the best” is discernable by judges, and 2) “the best” should shape how the law is read, not consensus, predictability, or perhaps the language of the law itself.

Part III argues for a moral reading of “living” originalists like Jack Balkin and the living constitutionalism of Bruce Ackerman, with its emphasis on progressive political movements and “superprecedents.” In Part IV, Fleming restates his espousal of moral readings as preserving and perfecting the Constitution. He concludes by arguing that only such a reading and program can save us from the moral necessity of rejecting and replacing the Constitution.

Fleming’s ideal, morally interpreted Constitution would: guarantee “positive benefits” rather than merely “negative liberties”; neuter the Electoral College; replace constitutional neutrality with an “anti-caste principle” in judging laws; create “an equal voice in the political process,” through control of campaign spending; eliminate limits on federal powers rooted in principles of federalism; and further limit the right to bear arms. In the author’s view, this list of favored progressive policies could be achieved through constitutional interpretation without going through the onerous procedures laid out in the amendment process, thus justifying retention of the Constitution itself (pp.182–84).

Fleming seeks to rework the Constitution, using it to make America what he thinks it ought to be. His constitutional interpretation would “afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy,” even as that democracy would cultivate “the civil virtues” and foster “the capacities for constitutional self-government” (pp. 175–76). This is, then, a full, normative vision of what makes for a good political society and life. The question is why we should accept this vision as our own and encourage its imposition on the nation through judicial decisions.

In making his case, Fleming asserts that the Constitution is “a framework or charter of abstract aspirational principles” (p. 10). If true, such a claim would delegitimize originalism because “original methods concerning the interpretation of text and intent, supplemented by original interpretive rules, are not going to provide determinacy in interpreting abstract constitutional commitments” (p. 57).

Are America’s constitutional commitments “abstract?” Here, Fleming asserts the importance of the Constitution’s Preamble, with its references to establishing justice and promoting the general welfare. Yet the Preamble, from its drafting up to the present day, has been recognized as an enacting clause and statement of general purpose, not as a Rosetta Stone of interpretive meaning, let alone a source of rights or powers. Only a few relatively recent Supreme Court justices have sought to make something more of the Preamble, while defending progressive policy goals. It is to such justices, including William Brennan and Anthony Kennedy, that Fleming turns in making the wider claim that, as Brennan wrote: “Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a pre-existing society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.” That is, the Constitution should be read as a progressive document encouraging innovations aimed at increased equality and individual autonomy because it was intended to “make over their world” (p. 44).

The author seeks to imbue chosen progressive arguments and precedents with constitutional authority. But he does not make any showing as to why readers should accept twentieth- and twenty-first-century claims of the Constitution’s “transformative” character; in this vein, he provides nothing beyond assertion, a few bits of judicial dicta and legislative detritus, and his own political program. Such does not constitute a counter to the plethora of contemporaneous statements and arguments justifying the Constitution as a means of achieving the goal—both truly revolutionary and intrinsically limited—of establishing, by agreement, a stable, lasting republican government under law. One obvious relevant example, here, is Federalist #9’s argument that the Constitution’s structures would allow the United States to avoid “the rapid succession of revolutions” experienced by ancient Greek and Roman republics.

In addition, Fleming makes no effort to show why his own policy goals should be raised to the level of higher law, sufficient to outweigh the historical meaning of legal terms and the right of the people to be ruled by settled, known laws. Instead, he elides interpretive issues by giving new meaning to phrases like “general welfare,” and arguing for the centrality of concepts like “autonomy” found nowhere in the Constitution’s text. One may choose to applaud the rise of autonomy as a political concept. But Fleming uses a far-fetched hypothetical to present the sexual autonomy cases, dating back no further than the middle of the twentieth century, as somehow embedding in our Constitution legal terms on a par with due process and equal protection (p. 38). In so doing, he assumes the point at issue, namely, whether the Constitution provides abstract, malleable principles, or legal terms freighted with practical as well as historical meaning. It remains unclear what entitles judges to ignore the former in favor of the latter, thereby denying litigants and citizens in general their right to be ruled by settled, known rules.

The rhetorical strength of Fleming’s argument lies in the clear injustice of the Constitution’s protection of slavery and indifference to segregation. Why would we bind ourselves to the understandings of those who would protect such evil? Here, he simply dismisses the Constitution’s provision of two potentially reinforcing means by which injustices might be abolished: legislative action and formal amendment. That the Supreme Court has further embedded injustices into our legal system through its own arrogant and policy-driven misconstructions in cases like Dred Scott v. Sandford and Plessy v. Ferguson, should give Fleming pause in his rush to enshrine “superprecedents” whose policy outcomes he approves.

Nevertheless, Fleming argues that only a “Constitution-perfecting theory” that “exhorts judges, elected officials, and citizens to reflect upon and deliberate about our deepest principles and highest aspirations as a people” can save us from the status of “pygmies” bowing down before fatally flawed ancestors (pp. 189, 191). His epistemological assumption? A judge must be capable of consistently and coherently “thinking for yourself about what constitutional provisions seem to refer to—like equal protection itself and due process itself” (p. 75, emphasis in original). Evidence offered up by Roger Taney, Henry Brown, Oliver Wendell Holmes, and their affirming colleagues suggests that Fleming assumes too much.

It would be a mistake to overlook the radical claim inherent in Fleming’s vision. In thinking “philosophically” or “for yourself,” judges would eschew their traditional vocation of applying the law. Reasoning by analogy, according to established rules of grammar, and in keeping with common law maxims is to be dismissed as slavish and unjust. Instead, judges are to aim at comprehending, outside of history and usage, what specific historical terms mean, taken as abstractions, then to decide how far such meanings can be pushed, given the realities of current language and politics. The justification for judges taking on this role is underdeveloped, but clearly rooted in a Rawlsian understanding of the requirements of liberal democracy (see especially the discussion of appropriate goals at pp. 175–76 and of Rawls’s overlapping consensus on p. 53, as well as Fleming’s bow to Rawls’s constructivism at p. 20).

In the end, Fleming’s progressive project adds little more than a note of caution to old-fashioned living constitutionalism. For all his insistence on his own fidelity, he sees the Constitution as little more than the commands of ancestors whose sins render their work suspect, save as a source of broad principles that judges can make conform to progressive aspirations in support of progressive policies. The fidelity of such a model attaches to the political program of its creator, not the Constitution, or even the people in whose name the interpreter seeks to make law.