Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?)

31 Pages Posted: 6 Nov 2015

See all articles by Gary Lawson

Gary Lawson

Boston University School of Law

Date Written: November 2, 2015

Abstract

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are compatible (spoiler alert: it’s an empirical question), and situate empirical reading within the development of originalist theory.

Keywords: originalism, constitutional interpretation, interpretative theory

JEL Classification: K19, K39

Suggested Citation

Lawson, Gary, Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?) (November 2, 2015). Boston Univ. School of Law, Public Law Research Paper No. 15-46. Available at SSRN: https://ssrn.com/abstract=2685410 or http://dx.doi.org/10.2139/ssrn.2685410

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

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