Vol. 34 No. 04 (July 2024) pp. 40-43CONSTRUCTING BASIC LIBERTIES: A DEFENSE OF SUBSTANTIVE DUE PROCESS, by James E. Fleming. Chicago: The University of Chicago Press, 2022. pp. 280. Paper $30.00. ISBN: 9780226821405. Cloth $95.00. ISBN: 9780226821399.
Reviewed by: Emily Zackin, Department of Political Science, Johns Hopkins University. Email: ezackin1@jhu.edu.
The Fourteenth Amendment bars states from depriving any person of life, liberty, or property without due process of law. Courts have interpreted this provision not only as a procedural protection but also as a guarantee of substantive rights, often rights that are not explicitly enumerated in the text of the Constitution. This way of reading the Fourteenth Amendment, known as substantive due process, has a bad reputation. In his important new book, Constructing Basic Liberties: A Defense of Substantive Due Process, James Fleming offers an earnest, thoughtful, and thought-provoking response to its many and varied critics.
Substantive Due Process, Fleming explains, has been haunted by the ghost of two notorious cases: Dredd Scott v. Sandford (1857) and Lochner v. New York (1905). Because Dredd Scott did not center on an interpretation of the liberty described in the Due Process Clause, Fleming denies that it is a substantive due process case and makes no attempt to defend it. However, he devotes a chapter to Lochner, arguing that the real problem with the majority’s opinion was not that it was grounded in a substantive due process argument about an unenumerated liberty (liberty of contract), but that economic liberties, like liberty of contract, do not actually require robust judicial protection. What the Lochner Court got wrong, on this account, is not that it protected a fundamental, unenumerated right through substantive due process, but that the particular right it protected was already safe from majoritarian attack. Though many conservatives are likely to disagree with the claim that economic liberties require little judicial protection, it is far from idiosyncratic. In fact, the Supreme Court also expressed this conviction in its creation and practice of rational basis review throughout the second half of the twentieth century.
Of course, vanquishing the ghost of Lochner cannot fully reassure those fearful of substantive due process. This specific case is haunting precisely because it points to a more general concern: that the doctrine of substantive due process empowers unelected and unaccountable judges to decide on a list of basic rights, with no way to ensure that the list is anything other than a judicial fabrication. In other words, the doctrine of substantive due process seems to endow the Supreme Court with an unbounded capacity to determine the meaning of the Constitution.
As I read it, the core claim of Constructing Basic Liberties is that judges can draw reasonable boundaries—they can define a set of unenumerated liberties without simply making things up. In fact, Fleming argues that after 1937, the Supreme Court performed this feat with remarkable success. Against a backdrop of habitual and widespread skepticism about substantive due process, Fleming asks his readers to think about the rights the Court actually articulated after 1937, and produces this list: liberty of conscience and freedom of thought, freedom of association, association regardless of sexual orientation, the right to live with one’s family, the right to travel or relocate, the right to marry, whatever the gender of one’s partner, the right to decide whether to bear or beget children, the right to direct the education and rearing of children, the right to exercise dominion over one’s body (p. 34). In offering this inventory, he draws on readers’ own moral intuitions, implicitly asking us to consider whether it really seems arbitrary or unbounded, proposing that if we can see through our fears about substantive due process, we will recognize its actual product as coherent and circumscribed. Each of these liberties, he argues, reflects the Court’s recognition of a realm of highly personal choices with which the state must not interfere lest it prevent people from directing the course of their own lives. With this concept at its core, the further development of this list does not seem to require baseless or boundless judicial inventions.
This idea—that the moral core of substantive due process doctrine can exert enough centripetal force to contain judicial meaning-making—is part of a larger thesis about how judges ought to interpret the Constitution. The Supreme Court was able to articulate a coherent, well-grounded collection of basic liberties, Fleming argues because it approached precedent as an important element of constitutional law.
Constructing Basic Liberties is rich with evocative metaphors, and the image of a constitutional interpreter as an archeologist is especially helpful. We might imagine two, very different kinds of archeologists, Fleming explains. The first archeologist views our constitutional tradition as a concrete set of specific historical practices. In stumbling upon the range of substantive due process cases that the Court has decided, such an archeologist would determine that these rulings (like those announcing the right to conduct a same sex relationship or the right to use contraception) had little to do with the nation’s constitutional tradition since these particular practices were once widely outlawed across the United States. Archeologists of this type would therefore conclude that they had “unearthed the junk pile of the constitutional culture,” (p. 34) discrete and jumbled creations of relatively recent vintage and little interest. The second kind of archeologist, however, understands constitutional tradition as unified by a consistent moral principle, not a consistent set of practices. These archeologists understand the same group of substantive due process cases as pieces of a single skeleton. They attempt to fit these pieces together to understand the body of our constitutional law. Fleming, of course, explains that this is the way the Court should and did treat these cases—not as separate judicial flights of fancy, properly discarded, but as the component parts that, together, structure a critical sphere of autonomy and freedom.
This book offers such a thorough answer to the many charges leveled against substantive due process that, in this short review, it is impossible to do justice to each. Two chapters refute the claim that substantive due process enacts a utopian economic or moral theory. Another section of the book interrogates the relationship between equality and the liberties protected by substantive due process, arguing that the rights protected by substantive due process are necessary to ensure equality. Fleming also addresses a section of the book to the conservative charge that the doctrine of substantive due process will inevitably spell the end for all morals legislation. One of the chapters in this section focuses on reassuring readers that no unrecognizable future lies at the bottom of a slippery due process slope.
Justice Scalia famously claimed that once the Court forced states to decriminalize gay sex, it would soon bar them from legislating against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” Roberts’ dissent in Obergefell v. Hodges sounded a similar caution, noting that the same reasoning through which the Court found a constitutional right to marry one’s same-sex partner could apply to polygamy. Fleming takes this alarm seriously, offering reassurance that few of these outcomes really do follow from the Court’s reasoning, and offering tools to “gain traction” on the slippery slope that these conservatives invoked. This particular undertaking seems somewhat at odds with the book’s larger approach to constitutional interpretation.
If we are to embrace evolving moral readings of the Constitution, it seems to me that we are also required to accept that constitutional meanings will develop in ways we cannot anticipate. This is not a libertarian argument that all morals legislation is the government overreaching. Instead, it is a recognition that even when a single moral principle guides a set of social changes, the concrete practices that express that principle may differ profoundly. If we take seriously the notion that each generation is given a set of principles to interpret and apply in the way it best understands them, we must also acknowledge that mores and moral understandings change so dramatically over time that many aspects of the social world are often rendered unrecognizable to those from different eras. If we do not see this phenomenon through the lens of decline, we need not seek to inhibit that process by finding sources of traction. Rather than reassure us that a particular set of practices is unlikely to fall within the realm of basic liberties or that changes will be gradual, therefore, I think the more consistent course might be to assure us that change, even unforeseen and rapid change, may still be consistent with constitutional fidelity. New generations will need to write new chapters in our constitutional chain novel (to borrow Ronald Dworkin’s famous metaphor). The important thing is not that we can predict where the story is going, but that we can see continuity between what we’ve written and what came before.
As many readers will immediately recognize, twentieth-century conservatives vociferously rejected this form of constitutional interpretation and change, arguing that it was a recipe for judicial dictatorship. They embraced originalism as the superior alternative, claiming that it would eliminate the license for judges to presume to understand our moral fiber and instead ensure judicial fidelity to the Constitution and its text. In fact, originalism became such a powerful watchword among conservative politicians and jurists that many on the left eventually decided to embrace the label (if not the whole can of worms underneath). Even the progressive justice, Elena Kagan, famously told the Senate during her 2010 confirmation hearings that, in some sense, “we are all originalists.”
Fleming has done just the opposite. Instead of giving ground to the originalist concern that constitutional interpretation might become untethered from either textual or historical foundations, he warns us that unbounded judicial discretion is not the only source of peril. It is also dangerous to misunderstand the nature of our Constitution and to reduce it to a code-like set of rules. There really are moral principles that make our democracy possible, he insists, and if we can’t reason about or defend them, that democracy will be imperiled.
This argument is refreshing in its frankness and bold in its timing. In the face of a polarized and politicized judiciary, it is tempting to try to limit the Court’s reach and discretion, and to de-emphasize the role of fundamental moral commitments, about which the two major parties seem so hopelessly deadlocked. Even under these dispiriting circumstances, Fleming urges us not to abandon our aspirations for a moral reading of the Constitution or for a judiciary that will offer one in good faith.
While it asks us to trust in the capacity of judges, Constructing Basic Liberties does not suggest that we simply accept rulings we think wrong-headed. When in control of Congress or the Executive, Fleming explains, we can craft federal policies that undermine such rulings or push on their outer boundaries. Critics of the US Supreme Court can also exploit federalism, challenging federal doctrine through state legislatures, courts, and constitutions. The thing we should not do, Fleming insists, is abandon the conviction that important values underlie our system. Constitutional interpretation, he reminds us, can and should orient our polity toward these ideals.
© Copyright 2024 by author, Emily Zackin.
