Constitutional Interpretation : The Basic Questions

## Abstract What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach. Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions, examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning. "What is the nature of the U.S. Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution." "Offering both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach, Constitutional Interpretation will be discussed by constitutional scholars and students for years to come."--BOOK JACKET Ronald Dworkin Famously Argued That Fidelity In Interpreting The Constitution As Written Calls For A Fusion Of Constitutional Law And Moral Philosophy. Barber And Fleming Take Up That Call, Arguing For A Philosophic Approach To Constitutional Interpretation. The Presuppositions Of Constitutional Interpretation -- The Principal Questions Of Constitutional Interpretation -- The Principal Features Of The American Constitutional Order : The Positive Constitutionalism Of The Federalist -- Approaches To Constitutional Interpretation -- Textualism And Consensualism -- Narrow Originalism/intentionalism -- Broad Originalism -- Structuralism -- Doctrinalism And Minimalism -- The Philosophic Approach -- Pragmatism -- Epilogue: A Fusion Of Approaches To Constitutional Interpretation. Sotirios A. Barber And James E. Fleming. Includes Bibliographical References And Index. Title Page 4 Copyright 5 About the Authors 6 Dedication 8 Epigraphs 10 Contents 12 Preface 14 Part I 18 1. The Presuppositions of Constitutional Interpretation 20 2. The Principal Questions of Constitutional Interpretation 30 3. The Principal Features of the American Constitutional Order: The Positive Constitutionalism ofThe Federalist 52 Part II 74 4. Approaches to Constitutional Interpretation 74 5. Textualism and Consensualism 82 6. Narrow Originalism/Intentionalism 94 7. Broad Originalism 114 8. Structuralism 132 9. Doctrinalism and Minimalism 150 10. The Philosophic Approach 170 11. Pragmatism 186 Epilogue: A Fusion of Approaches to Constitutional Interpretation 204 Index 208