Are the American people to be ruled by laws of their own devising or according to the prejudices of a small group of lawyers and politicians who have abandoned the hard work dictated by their vocation? This is only one of the questions addressed by Constitutional Morality and the Rise of Quasi-Law that is ignored in James Fleming’s initial contribution to this dialogue. Others include: What is law? What is the rule of law, and why ought we to value it? What is a constitution, and what role(s) might it play in upholding the rule of law? Is justice achievable through law? And, most comprehensively: What happens when a people’s expectations from their government increase to the point where that government can no longer function according to the rules and restrictions laid down in law?

Fleming makes clear his indifference to such questions when discussing his own work: “I begin where we are today in an ongoing constitutional practice and seek to construct the theory that best fits and justifies that practice.” That is, he takes judicial activism as self-justifying and seeks to buttress it as necessary for its perpetuation. His theory is a tool, a means by which to justify continuing currently popular conduct.

Why ought Fleming, and those who share his vision, continue their current conduct, and why ought citizens of the American republic acquiesce in such continuation? His evidence for the claim that his conduct is justified because the Constitution is “a framework or charter of abstract aspirational principles” (p. 10) consists of vague references to the Preamble and Civil War Amendments. He barely makes the effort of asserting this justification, and it is barely worth refuting. What Fleming adds is presumption. Here I refer to this statement: “I presume that we have built out our framework for governance in a spirit of fidelity to our aspirational Constitution, and that where we have departed from practices specifically contemplated by the Founders, we have done so because they have proven to be inadequate to fulfill the Constitution’s aspirations.” Such presumptions are convenient, but hardly self-evident. Moreover, his assertion that George Carey and I simply “presume” otherwise constitutes a flagrant dismissal of the evidence as well as the arguments of our book.

The core of what Fleming ignores in Constitutional Morality is its understanding of the vocation of lawyers and statesmen. He may feel free to “philosophize” in the partial sense of justifying his own practices and political preferences. But until quite recently, lawyers were trained otherwise and, given law’s historical nature and role, the people clearly have a right to expect more from them. The historical and linguistic work Fleming dismisses as worthy only of “pygmies” is neither simple nor meaningless; it is the essence of lawyering, and especially of judging—just as determining legislative priorities and design is the essence of being a legislator and executing the laws is the essence of being a chief executive. When holding public office, one’s duty is to uphold the generally understood methods and goals of that office. Adjudicating under law requires working to understand the law as it is and to vindicate the reasonable expectations of the parties to any given legal action. Making law requires writing legislation that sets forth clear, consistent rules the people can follow. Executing laws requires enforcing the law as written. This is the essence of the traditional American constitutional morality, a morality that once upheld the rule of law, not the rule of would-be moral philosophers in black robes. When all those in power decide that they are moral philosophers entitled to redesign the rules that order our common life, law is reduced to will—and a contradictory, unpredictable will at that.

Virtue requires of those in power that they not abuse it, that they act within the scope of authority given them by higher authority—in the case of judges and lawyers, the Constitution, and the law. It is ironic that Fleming would so misdefine the term “fidelity” as to have it require his “moral reading”—based in nothing more substantial than a thin Rawlsian consensus—to gut the text of law, and the Constitution’s higher law, in the name of reaching his preferred political goals.