It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to discover relatively specific original meanings. I argue that fidelity in interpreting the Constitution requires a moral reading. Fidelity commits us to honoring the aspirational principles embodied in our constitutional text and practice, not merely following the relatively specific original meanings of the Founders. Only a moral reading that 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.

In Constitutional Morality and the Rise of Quasi-Law, Frohnen and Carey argue that separation of powers among coequal branches of government formed the cornerstone of our original constitutional morality. But “Progressives” attacked this bedrock principle, believing that it impeded government from “doing the people’s business” (p. 8). The regime of mixed powers, delegation, and expansive legal interpretation that they instituted rejected the ideals of limited government embodied in the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different groups with a body of quasi laws commanding the democratic reformation of society. Pursuit of this Progressive vision, they argue, has become ingrained in our legal and political culture, thereby undermining the constitutional safeguards that preserve the rule of law.

What are the justifications for pairing these two books? For one thing, they illustrate the radical divide between liberal and conservative constitutional theory. For another, even where they might seem to stand on common ground (consider my arguments for a moral reading and Frohnen and Carey’s emphasis on constitutional morality, and both of our concerns for the virtues essential for ordered liberty), closer examination shows that we understand these concepts radically differently. I sketch our differences by focusing on the issues framed in my title.

1. Fidelity: I distinguish two understandings of fidelity in constitutional interpretation: a) fidelity as following relatively specific original meanings (originalisms) versus b) fidelity as honoring aspirational principles embodied in the constitutional text and practice (moral readings). I argue for the latter.

Frohnen and Carey do not explicitly present themselves as originalists nor do they advance a conception of fidelity as such. They argue that to realize the benefits of the rule of law, we must follow the original constitutional design as they conceive it. They presumably would argue that what I conceive as fidelity is instead infidelity of the highest order. In their terms, it amounts to a French Revolution overthrowing our original “mediating” constitution and replacing it with a “commanding” constitution (pp. 14, 77–78).

The Constitution is hardly commanding, although it is aspirational. The Constitution proclaims itself to be an instrument aspiring to form a “more perfect union” and to pursue the noble ends stated in the Preamble. Similarly, the Reconstruction Amendments promise a “new birth of freedom” together with the status of equal citizenship for all. If we are to be faithful to our imperfect, aspirational Constitution, we should interpret it so as to make it the best it can be. Frohnen and Carey evidently see separation of powers, the rule of law, federalism, and the nature of our mediating constitution as protecting us against the very things I see the Constitution as aspiring to. Yet following relatively specific original meanings would enshrine an imperfect Constitution that does not deserve our fidelity.

2. Our Imperfect Constitution: Jack Balkin (Living Originalism, 2011) contrasts two types of originalism. “Skyscraper originalism” views the Constitution as more or less a finished product, subject to later Article V amendment. “Framework originalism” views the Constitution as a framework for governance that must be filled out over time through constitutional construction. Later generations have to build up and implement the Constitution, but they must remain faithful to the basic framework (pp. 21–23). This contrast parallels a basic difference between our books. Frohnen and Carey view the Constitution as more or less a finished product, whereas I view it as a framework for governance that we have to build out over time in order to address future problems and to realize the best understanding of our constitutional commitments.

Accordingly, the books reflect different starting points and attitudes toward change. I begin where we are today in an ongoing constitutional practice and seek to construct the theory that best fits and justifies that practice. They begin with a conception of the original constitutional design and criticize practices they see as departing from it. 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. They presume that Progressives who reject the original Constitution have sought to replace it with a different constitution that cannot preserve the rule of law.

3. For Moral Readings: I argue for a moral reading of the Constitution. They emphasize a constitutional morality undergirding the Constitution. Judging from these formulations, we might expect to find common ground. Yet I conceive a moral reading as a theory of constitutional interpretation and a substantive theory that best fits and justifies our constitutional text and practice. They conceive constitutional morality in terms of the self-restraint of officers to honor separation of powers, the rule of law, and federalism and therewith to secure ordered liberty. This morality is in part the virtue of officers who refrain from undertaking the aspirational projects my theory prescribes. Strikingly, constitutional morality on their view would preclude the very pursuit of a moral reading!

Both books reflect conceptions of the virtues necessary to sustain our constitutional order and to secure ordered liberty. In fact, I coauthored a book entitled Ordered Liberty: Rights, Responsibilities, and Virtues (2013; with Linda C. McClain). But there is a wide gulf between our views. For them, those virtues are inculcated almost entirely through the institutions of civil society. They reject what I propose: a formative project of government and civil society working together to inculcate civic virtues and to develop the capacities for responsible self-government. I conceive government as compensating or correcting for the failures of civil society in order to secure ordered liberty. They see government as usurping the role of civil society and encroaching on ordered liberty.

4. Against Originalisms: I argue against originalism in part on the ground that it cannot fit and justify our constitutional practice, which largely has rejected it. Indeed, I observe that originalism is characteristically a call for a radical return to first principles. Nonetheless, conservative legal originalists typically start from where we are today: a) living in a modern administrative state with practices not envisioned by the Founders and b) living in a constitutional order with doctrines built out through a process of common law constitutional interpretation. Because of the “ghost of Lochner,” most originalists have largely accepted the legitimacy of the New Deal and the modern administrative state. Moreover, most accept, as settled law, doctrines that they are not able to square with relatively specific original meanings.

Frohnen and Carey are more radical in the sense of rejecting as illegitimate many practices and doctrines they believe are incompatible with the original constitutional design. Their attack on Progressivism entails that most of the New Deal and the modern administrative state is unconstitutional. Ironically, given that they evidently view themselves as Burkeans, they are more revolutionary than typical originalists because they contemplate a radical return to first principles and rejection of long-standing, deeply ingrained practices.

When I wrote Fidelity, I knew that the divide between liberal and conservative constitutional theory was profound. After reading Frohnen and Carey’s book, I have concluded that it is wider and deeper than I could have imagined. We hold fundamentally different presuppositions about the attitudes of actors within our constitutional scheme. I presume that liberals are committed to building out the best understanding of our constitutional commitments, whereas they presume that liberals reject the original constitutional design and seek to replace it with a Progressive design that undermines the separation of powers, the rule of law, federalism, and therewith ordered liberty. I presume that when our constitutional practice does not conform to putative original constitutional design, it is because experience has shown that it is inadequate for pursuing the aspirations proclaimed in the Preamble. I presume, in short, an attitude of fidelity to our imperfect Constitution.