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"Fleming, James E"
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CONSTRUCTING A LIBERAL/PROGRESSIVE \CONSTITUTION IN EXILE\: AN APPRECIATION OF JACK BALKIN'S MEMORY AND AUTHORITY
[...]I sketch briefly how Balkin's book might inform Linda C. McClain's and my current book project, \"What Shall Be Orthodox\" in Polarized Times. By populism, I mean the idea that the people themselves are the ultimate interpreters over and against the departments.21 When Kramer published his book in 2004, prior to Donald Trump's emergence on the national stage of U.S. politics, people could speak of \"populist constitutionalism\" in U.S. constitutional law without it having the authoritarian implications it has today. [...]Keith Whittington embraces constitutional construction by legislatures and executives alongside constitutional interpretation by courts.23 Less obviously, Larry Sager falls within this category of popular constitutionalism because his \"underenforcement thesis\" commits him to the idea that certain constitutional norms are judicially underenforced; their fuller enforcement is left to legislatures and executives, who share with courts the authority to interpret the Constitution.24 We could put Cass Sunstein's The Partial Constitution2-5 and certainly my first book, Securing Constitutional Democracy,26 in this category, too. [...]its proponents stressed original meaning originalism as the theory whereby courts were obligated to restore the lost Constitution.30 But over the years I have come to understand this discourse as part of a conservative social movement-stemming from what Albert O. Hirschman famously called the \"rhetoric of reaction\"31-all in the name of restoring an imagined past while delegitimizing every institution and program liberals and progressives have used to pursue their conceptions of our constitutional commitments and justice.32 How is this discourse related to popular constitutionalism?
Journal Article
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
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
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
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
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