Constitutional Interpretation

Abstract

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.