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Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory." This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional interpretation in light of original understanding," or what I will call CILOU---as its starting point. As masterfully as Fleming upbraids originalism as an ism, he wishes to leave untouched, indeed celebrates CILOU. What accounts for this normative disjuncture? Is it defensible? Fleming does not give us the resources to answer this question. Fleming gives three reasons to be opposed to originalism. First, he finds it authoritarian and insulting. It insults the founders by suggesting that they would have insisted on our following their expectations, and it insults all of us in the here and now by "attributing to us, a self-governing people, a subservience to such founders' authoritarian, arrogant will." Second, Fleming objects to the idea, which he ties to originalism, that constitutional interpretation does not require the exercise of moral and political judgment. He argues that such judgments are both inevitable and desirable. Finally, Fleming believes that originalism rejects the idea of fidelity "as honoring our aspirational principles . rather than as following our historical practices," which are imperfect. Fleming rejects the notion that the only way to honor the Constitution is to understand it in narrow historical terms. Part I outlines two distinct ways of understanding the prominence of CILOU in U.S. constitutional interpretation. Its dominant manifestations are interpretive pluralism and the use of original sources to resolve ambiguity over relatively specific constitutional provisions. Part II shows that each of Fleming's criticisms of originalism applies to CILOU. Rejecting the ideology of originalism on the grounds Fleming urges seems to entail rejecting the practice of CILOU, which both originalists and nonoriginalists seem to accept. Part III suggests that Fleming's failure to account for the shortcomings of CILOU follows from the fact that his proposed moral reading is, like originalism, an ideology. It is an ism rather than a practice and so has more to say about how judges affiliate than about how they behave in the wild. Indeed, we can understand originalism itself as a moral reading whose attraction, like Fleming's own theory, depends on its power to persuade.

Located at the intersection of law, political science, philosophy, and literary theory, this is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. It traces that debate to a particular set of premises about the nature of language, interpretation, and objectivity, premises that raise the specter of unconstrained, unstructured constitutional interpretation that has haunted contemporary constitutional theory. It presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. It makes this argument in terms of the first principle of the American political system: by their fidelity to the Constitution, Americans are a textual people in that they live in and through the terms of a fundamental text

Located at the intersection of law, political science, philosophy, and literary theory, this is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. It traces that debate to a particular set of premises about the nature of language, interpretation, and objectivity, premises that raise the specter of unconstrained, unstructured constitutional interpretation that has haunted contemporary constitutional theory. It presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. It makes this argument in terms of the first principle of the American political system: by their fidelity to the Constitution, Americans are a textual people in that they live in and through the terms of a fundamental text

Intro -- HalfTitle -- Series -- Title -- Copyright -- Contents -- Preface -- Website -- 1 Aspects of Law and Legal Systems -- 1. The command theory -- 2. Critique of the command theory -- 3. Primary and secondary rules -- 4. H. L. A. Hart's theory of law -- 5. Predictive theories -- 6. Rules and principles -- 7. Legal validity and the sources thesis -- 8. The separability of law and morality -- 9. The authority of law -- 10. The rule of law -- 2 Courts and Legal Reasoning -- 1. Is legal reasoning deductive? -- 2. Legal realism -- 3. Sources of law -- 4. Indeterminacy -- 5. Indeterminacy and critical legal studies -- 6. Hart on rule-skepticism -- 7. Theories of law versus theories of adjudication -- 8. Right answers -- 9. Precedent -- 3 Making, Justifying, and Evaluating Law -- 1. Making law -- 2. Normative concepts for justifying and evaluating law -- 3. Moral evaluation of the criminal law -- 4. Punishing omissions: Bad Samaritan Laws -- 4 Law and Individual Obligation -- 1. The duty to obey the law -- 2. Civil disobedience -- 5 Private Law -- 1. Constructive interpretation of legal doctrine -- 2. Property -- 3. Tort -- 4. Causation -- 5. Contract -- 6 Criminal Law -- 1. Elements -- 2. Conduct -- 3. Mens rea -- 4. Justification -- 5. Excuse -- 6. Inchoate offenses -- 7 Sentencing and Punishment -- 1. Sentencing -- 2. Defining punishment -- 3. Types of sentence -- 4. Reasons to sentence -- 5. Hybrid theory -- 6. Retribution -- 7. Defensive theories -- 8. Capital punishment -- 8 Statutes -- 1. Statutory interpretation -- 2. Intent versus understanding -- 3. Originalism -- 4. Nonoriginalism -- 5. Originalism and the evolution of meaning -- 6. Legislative intent -- 7. Obsolete statutes -- 8. Textualism or purposivism? -- 9. Illustration -- 10. Canons of construction -- 9 Constitutions.

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." My thesis is that there is a third option, which I will call conventionalism. Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke. I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values – the rule of law, promotion of democracy, and so on – that are commonly invoked in support of originalism. Indeed, I will go further and maintain that conventionalism does even better than originalism when considered in light of these values. My thesis, in short, is that the choice is not just Bork v. Brennan. It is also Bork v. Burke. And, at least for someone who puts a lot of stock in conservative values, Burke beats Bork.

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." My thesis is that there is a third option, which I will call conventionalism. Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke. I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values--the rule of law, promotion of democracy, and so on--that are commonly invoked in support of originalism. Indeed, I will go further and maintain that conventionalism does even better than originalism when considered in light of these values. My thesis, in short, is that the choice is not just Bork v. Brennan. It is also Bork v. Burke. And, at least for someone who puts a lot of stock in conservative values, Burke beats Bork.