Virtual Event: James Fleming
Constructing Basic Liberties:
A Defense of Substantive Due Process
November 18, 2022
12:00 PM ET
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Harvard Book Store and the Edmond & Lily Safra Center for Ethics welcome law professor JAMES FLEMING for a discussion of his new book Constructing Basic Liberties: A Defense of Substantive Due Process.
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About Constructing Basic Liberties
From reproductive rights to marriage for same-sex couples, many of our basic liberties owe their protection to landmark Supreme Court decisions that have hinged on the doctrine of substantive due process. This doctrine is controversial—a battleground for opposing views around the relationship between law and morality in circumstances of moral pluralism—and is deeply vulnerable today.
Against recurring charges that the practice of substantive due process is dangerously indeterminate and irredeemably undemocratic, Constructing Basic Liberties reveals the underlying coherence and structure of substantive due process and defends it as integral to our constitutional democracy. Reviewing the development of the doctrine over the last half-century, James E. Fleming rebuts popular arguments against substantive due process and shows that the Supreme Court has constructed basic liberties through common law constitutional interpretation: reasoning by analogy from one case to the next and making complex normative judgments about what basic liberties are significant for personal self-government.
Elaborating key distinctions and tools for interpretation, Fleming makes a powerful case that substantive due process is a worthy practice that is based on the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.
Praise for Constructing Basic Liberties
"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
The “Ethics in Your World” series, presented with Harvard University’s Edmond & Lily Safra Center for Ethics, features leading thinkers taking on tough problems that matter to us all. Learn more about the Edmond & Lily Safra Center for Ethics at ethics.harvard.edu.
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