History, Rights, and the Moral Reading
Jack M. Balkin
Yale University - Law School
April 10, 2016
Boston University Law Review, 2016, Forthcoming
Yale Law School, Public Law Research Paper No. 575
James Fleming's book, Fidelity to Our Imperfect Constitution, argues for a "moral reading" of the Constitution, a phrase made famous by Ronald Dworkin. But Fleming's version of the moral reading differs from Dworkin's in two important ways.
First, Fleming argues that Dworkin's attempt to explain and justify judicial protection of constitutional rights in terms of democratic self-government is unduly strained. Moreover, in the quest to re-characterize all of these rights as supporting democracy, there is the danger that we will distort their most valuable features. I show why Fleming's insight is correct. I use the example of the First Amendment's guarantees of speech and press, which many scholars have assumed offers the strongest case for a democracy-based justification of rights.
Second, Dworkin spent relatively little time worrying about how historical argument figured into a moral reading of the Constitution, other than to criticize originalism. Building on Dworkin's argument that good interpretations must satisfy the two dimensions of "fit" and "justification," Fleming asserts that history can be quite important to moral readings. I argue that Fleming offers a better account than Dworkin of why history matters -- and should matter -- to a moral reading of the Constitution. I show how his account connects with my own work on how lawyers use history in constitutional argument.
Number of Pages in PDF File: 24
Keywords: James Fleming, Ronald Dworkin, moral reading, Constitution, democracy, history, historical argument, interpretation, originalism
JEL Classification: K10
Date posted: April 13, 2016