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"Fleming, James E"
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Toward a Liberal Common Good Constitutionalism for Polarized Times
Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. Vermeule calls his constitutionalism a \"common good constitutionalism.\" Here, McClain and Fleming discuss the necessity for a \"moral reading\" of the US Constitution rather than an originalist reading and a positive constitutionalism instead of a view of the Constitution as simply a charter of negative liberties. They then raise several concerns about Vermeule's disruptive project: the historical role of appeals to natural law and divine law in justifying sex and race inequality; Vermeule's caricatured depiction of what he calls \"progressive constitutionalism\" and his emphatic rejection of autonomy as a basis for Due Process liberty; and the seeming absence of the role of deliberation by the people about the common good and of appreciation of reasonable moral pluralism in his conception of common good constitutionalism. Furthermore, they sketch an alternative liberal common good constitutionalism for our morally pluralistic and politically polarized people.
Journal Article
CIVIC EDUCATION IN CIRCUMSTANCES OF CONSTITUTIONAL ROT AND STRONG POLARIZATION
This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as \"constitutional rot\" in the United States. A twenty-first century civic education must meet challenges ofpolarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a \"Sputnik moment for teaching civics\"-seeing a link between the whitesupremacist/conspiracy-theory mob 's actions and the failure to instill civic virtue in \"We the People. \" To be capable of spurring national reconciliation and renewal, civic education must reckon with systemic racism and with how to strive to overcome it. This Essay critiques the model of \"patriotic education\" set out in The 1776 Report as a signal of, rather than a cure for, constitutional rot. The Report's attacks on \"identity politics\" and critical race theory as incompatible with \"authentic\" civics education echo in recent proposed or enacted state and local laws prescribing whether and how teachers may teach students about racism and sexism. A better model of civic education, we argue, is the call for \"reflective patriotism\" set out in the Educating for American Democracy Initiative. This model combines \"love of country with clear-eyed wisdom about our successes and failures in order to chart our path forward. \" It helps students to engage with \"hard histories\" of inclusion and exclusion and to understand how the constitutional order has become more democratic because of the efforts of social movements. It seeks to educate young people \"to participate in and sustain our constitutional democracy.\" This model offers hope for addressing constitutional rot and preparing students to face present-day challenges.
Journal Article
Federalism and subsidiarity
\"In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to \"remap\" federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations\"-- Provided by publisher.
Book
Are We All Originalists Now? I Hope Not!
The author hopes that you are not all originalists now. In this Article, he explains why. 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. A constructivist world would look somewhat like the pre-originalist 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. The author 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.
Journal Article
Getting to the rule of law
The rule of law has been celebrated as \"an unqualified human good,\" yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an \"inner morality of law,\" or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power \"outside the law\" justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks? In Getting to the Rule of Law a group of contributors from a variety of disciplines address many of the theoretical legal, political, and moral issues raised by such questions and examine practical applications \"on the ground\" in the United States and around the world. This timely, interdisciplinary volume examines the ideal of the rule of law, questions when, if ever, executive power \"outside the law\" is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions.
eBook
THE MORAL READING AS A PRACTICE: A RESPONSE TO THREE COMMENTS ON FIDELITY TO OUR IMPERFECT CONSTITUTION
[...]I present the moral reading, not as Dworkin's particular theory, but as a \"big tent\" that encompasses many different theories and approaches that ultimately acknowledge the need to make moral judgments in constitutional interpretation.4 As Balkin points out, \"[u]nderstood from Fleming's generous perspective, common law constitutionalists like David Strauss, living originalists like myself, and advocates of dualist democracy like Bruce Ackerman offer distinctive moral readings of the Constitution. [...]I confess that I am not sure what Greene means by his title-\"A Nonoriginalism for Originalists\"-and his concluding suggestion that \"Fleming might well have articulated a nonoriginalism for originalists.
Journal Article