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.
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. His talk for the HLS Law and Philosophy Society on November 3 will emphasize the battles over substantive due process between competing understandings of the Constitution and of constitutional interpretation: moral readings (which triumphed in Obergefell) and originalisms (which unfortunately prevailed in Dobbs).
1. Chapter 1: A Second Death of Substantive Due Process?, which summarizes the entire book.
2. Chapter 8: The Grounds for Protecting Basic Liberties: Liberty together with Equality, which assesses arguments for “rewriting” substantive due process decisions like Roe and Obergefell to equal protection grounds.