James E. Fleming
91 Texas L. Rev. 1785
In recent years, some have asked: “Are we all originalists now?” Professor Fleming’s response is: “I hope not!” In this Article, Professor Fleming explains why. But first, he shows that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what Professor Fleming calls “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, according to Professor Fleming, just has to be. By definition. In the nature of things—in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation. This Article sketches some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.
Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what Professor Fleming calls “constructivist.” A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we—self-styled originalists no less than the rest of us—always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend—in the name of originalism—that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. Professor Fleming argues that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach—including no version of originalism—can responsibly avoid philosophic reflection and choice in interpreting the Constitution.