Description
Book SynopsisTrade Review"Constructing Basic Liberties offers a nuanced and comprehensive defense of common law constitutional interpretation as it has been applied to one of the Constitution’s most general and far-reaching provisions: the due process clause." * The New York Review of Books *
"Substantive due process is a legal tool. Judges can define an unenumerated right—to marry or travel, for instance—as so fundamental that it is among the liberties that the constitutional due process clause protects. For example, in the past, it was used to incorporate economic rights allowing businesspeople to oppress workers....Recently, however, it was used to guarantee gay marriage and the right of bodily autonomy in
Roe v. Wade. Fleming argues that these cases are logically derived from a right to privacy and distinguishes them from the 'grave errors' of the past." * Choice *
"Against recurring charges that the practice of substantive due process is dangerously indeterminate and irredeemably undemocratic, Fleming argues that there is an underlying coherence and structure of substantive due process and defends it as integral to constitutional democracy." * Law & Social Inquiry *
"This book offers a marvelously spirited, sophisticated, and multi-faceted defense of the modern tradition of substantive due process. It deftly weaves doctrinal analysis with normative argument and answers objections with emphatic precision. Liberals and progressives will especially welcome the book’s concluding strategies for promoting constitutional liberty under a conservative Supreme Court.” -- Richard H. Fallon Jr., Harvard Law School
“Fleming brings to life great clashes between Justice Kennedy and Justice Scalia, between two competing understandings of the Constitution, asking “Is it a basic charter of abstract aspirational principles like liberty and equality? Or a code of specific, enumerated rights whose meaning is determined by the deposit of concrete historical practices extant at the time of the adoption of the Fourteenth Amendment in 1868? Ultimately, Fleming shows that the Court’s modern due process cases—those protecting reproductive rights, sexual autonomy, marriage, and parenthood—are no less legitimate, from a constitutional or democratic perspective, than equal protection cases that are generally viewed as uncontroversial. In fact, Fleming convincingly demonstrates that the rights protected by the modern due process decisions are critical to the equal citizenship of women and LGBTQ individuals.” -- Reva Siegel and Douglas NeJaime, Yale Law School
“In
Constructing Basic Liberties, James Fleming offers a powerful and persuasive defense of the much-maligned Supreme Court practice of recognizing unenumerated rights under the aegis of “substantive due process.” Cases recognizing such rights as contraception, abortion, and same-sex marriage do not, as conservatives claim, augur the end of legislation based on morality, nor do they simply substitute judicial values for popular ones. Responding to progressives who would relocate rights in equal protection, Fleming also explains how equality should complement rather than supplant liberty. Even if the Trump-packed high court overrules
Roe v. Wade, protection for a domain of what Fleming aptly terms “personal self-government” likely will and certainly should remain a durable feature of American constitutionalism.” -- Michael C. Dorf, Cornell Law School
“In the face of a Supreme Court that now more stridently than ever insists that law is simple fact, Fleming stands boldly for the position that law, and in particular law that safeguards our most intimate dignity, must inevitably reflect our actual constitutional values. Fleming vigorously revives the proud but now besieged position, once associated with Ronald Dworkin, that, through the doctrine of substantive due process, our constitutional law embodies the essence of American personhood.”
-- Robert Post, Yale Law School
Table of Contents1. A Second Death of Substantive Due Process?
Part I: Our Practice of Substantive Due Process
2. The Coherence and Structure of Substantive Due Process
3. The Rational Continuum of Ordered Liberty
Part II: Substantive Due Process Does Not “Effectively Decree the End of All Morals Legislation”
4. Is Substantive Due Process on a Slippery Slope to “the End of All Morals Legislation”?
5. Is Moral Disapproval Enough to Justify Traditional Morals Legislation?
Part III: Substantive Due Process Does Not Enact a Utopian Economic or Moral Theory
6. The Ghost of
Lochner v. New York 7. Does Substantive Due Process Enact Mill’s
On Liberty?
Part IV: Conflicts between Liberty and Equality
8. The Grounds for Protecting Basic Liberties: Liberty Together with Equality
9. Accommodating Gay and Lesbian Rights and Religious Liberty
Part V: The Future
10. The Future of Substantive Due Process
Acknowledgments
Notes
Index
