Ken I. Kersch


Constitutional Commentary








One of the central debates amongst U.S. constitutional theorists for more than a generation has been between (conservative) ‘originalists’ arguing that, in interpreting and applying the Constitution, judges are duty bound to adhere to the original understandings at the time of the Constitution’s adoption and (liberal/progressive) ‘living constitutionalists’ arguing rather that, when appropriate, judges should read the Constitution in light of contemporary needs and moral aspirations. While acknowledging the significance and legitimacy of the originalist call for fidelity to history and newly incorporating elements of their arguments into his theory, Fleming, in Fidelity to Our Imperfect Constitution, re-affirms moral aspirationalism as the ultimate foundation of the interpretive project. I argue here, as against Fleming, that the opposition that he (and other American constitutional theorists) have drawn between originalism’s historicism and living constitutionalism’s moral aspirationalism is a false binary – the contingent product of a developmental succession of political battles between American conservatives and progressive/liberals over the course of the twentieth century. I argue here, contra Fleming, that in both theory and practice, in the U.S. at least, history and moral aspiration are and have always been inextricably intertwined – inseparable -- and that, going forward, U.S. constitutional historians and theorists would do better by forthrightly acknowledging and accounting for this fact, and dynamic.

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