Fidelity to Our Living Constitution

21 Pages Posted: 22 Mar 2015

See all articles by James E. Fleming

James E. Fleming

Boston University - School of Law

Date Written: March 19, 2015


This essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living constitution: the commitments “hammered out” through the processes of popular sovereignty during the Civil Rights Revolution. I reconstruct Ackerman’s living constitutionalism as a moral reading in which faithful interpretation requires normative judgments about the best understanding of the constitutional commitments that have been built out over time.

Keywords: Civil Rights Revolution, constitutional amendment, constitutional canon, higher lawmaking procedures, living constitutionalism, We the People

JEL Classification: K19, K39, K49

Suggested Citation

Fleming, James E., Fidelity to Our Living Constitution (March 19, 2015). 50 Tulsa Law Review, 2015, Forthcoming, Boston Univ. School of Law, Public Law Research Paper No. 15-12, Available at SSRN:

James E. Fleming (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
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617-353-3077 (Fax)


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