Podcast on "Washington's Heir"

Gerard N. Magliocca

Mount Vernon recently posted this conversation about my biography of Justice Bushrod Washington.  

Erasing the Past, Rethinking the Future

Guest Blogger

Pluralism, the Common Law, and Substantive Due Process

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Guha Krishnamurthi

Thanks very much to Professor Fleming and Professor Balkin for inviting me to write this short review of Constructing Basic Liberties: A Defense of Substantive Due Process.

In 1971, Herbert Packer observed that, among lawyers and law students, “‘substantive due process’ is a dirty phrase.” Fifty years later, the doctrine remains much maligned. And for many liberal and progressive constitutional theorists, substantive due process has proven to be a painful thorn. The pressing question is how does proper constitutional methodology justify these decisions? More blunt versions include:

• Where are the right to privacy, reproductive rights, and the right to marry in the text and history of the Constitution?
• What does Substantive Due Process even mean? It seems like an oxymoron.
• Isn’t this all made up?

The problem for liberal and progressive constitutional theorists is not that there are no answers to these questions. It’s that such answers cannot be uttered within one breath, that they cannot fit on a billboard. They do not have the alluring simplicity of catchphrases like, “The text, and only the text, is the law.” (And let’s be clear, that is just a catchphrase, as Erik Encarnacion has most recently explained.) Instead, what we require is an ardent, rigorous, comprehensive, and ecumenical defense of Substantive Due Process. That is what Professor Fleming has provided in Constructing Basic Liberties: A Defense of Substantive Due Process. All in 280 pages (and one line drawing).

Constructing Basic Liberties: A Meta Review

Guest Blogger

Read Amar, Amar & Calabresi in Moore v. Harper

Jason Mazzone

Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper. That's the case involving a claim by North Carolina legislators that under the Constitution only the legislature of a state has the power to regulate federal elections--without any interference from state courts or any constraints from state constitutions. The brief from Akhil, Vik and Steve is an intellectual battering ram that demolishes the independent state legislature theory. It is also the punchiest brief filed in a very long time. In its substance and by its candor, the brief sets a new standard for friend of the court. The brief is available at this link. 

The political philosophy of Charles Koch

Andrew Koppelman

The ongoing climate catastrophe was brought about by idealism. It is commonly blamed on the greed of the petroleum industry, but the most effective source of climate denial has been a single determined libertarian who thought that he was creating a better world.

To understand what has happened, you need to understand this man’s idealism: where he got it from, the moral vision that animates it, and how, in his hands, it has been betrayed and corrupted.

I explain in a profile of the political philosophy of Charles Koch at The Daily Beast.

The World Turned Upside Down: What’s Up with the Harm Principle?

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Cathleen Kaveny

Legend has it that the British played a song called “The World Turned Upside Down” as the laid down their arms in defeat at the last major battle of the Revolutionary War. How could the colony have defeated the empire? It just didn’t make sense.

In an admittedly exaggerated way, “The World Turned Upside Down” captured something of my reaction when I read two recent invocations of the liberal Harm Principle, which limits legitimate law, or at least legitimate criminal law, to prohibiting actions that wrongfully harm another person.

On the one hand, conservative Justice Samuel Alito assured his readers in Dobbs v. Jackson that the right to same –sex marriage was not in danger just because the Court had overturned the right to abortion. As a justification, he seems, at least tacitly, to invoke the Harm Principle. “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “po­tential life,” but an abortion has that effect” (slip op. 218) So the reason that the right to abortion can be overruled is that it harms a third party (the fetus). The activity at stake in the other cases does not harm other people—therefore they should not be overruled. How this reasoning interacts with Justice Alito’s constitutional theory, and analysis of precedent, is not entirely clear.

On the other hand, eminent constitutional law scholar James E. Fleming explicitly distances himself from the Harm Principle in his compelling new book, Constructing Basic Liberties: A Defense of Substantive Due Process (2022).  In response to a charge made by Justice Scalia (accompanied by a parade of sexual activities) Professor Fleming argues that “Clearly, the protection of the rights of same-sex couples to intimate associations and to marry does not ‘effectively decree the end of all moral legislation.”

 So on the surface at least, we have a conservative seemingly endorsing some version of the Harm Principle, and a progressive defending the use of the law to further moral purposes. Is the world really turned upside down? Or is something else going on? In this essay, I would like to examine the situation. In the first part, I will consider the Harm Principle. In the second part, I will look at both Alito’s and Fleming’s use of the Harm Principle. In part three, I will consider four bigger questions their invocations of the Harm Principle have raised for me.

The continuing, destructive power of libertarianism

Andrew Koppelman

 At a recent conference on conservative philosophy, I told another professor that I’d just written a critical history of libertarianism. “You’re too late,” he said. “After Trump, libertarianism is dead in American politics.” 

Would that it were so. The Libertarian Party is indeed in deep trouble, torn apart by factionalism. Despite the increasing ubiquity of communitarian, nationalist rhetoric, however, libertarianism has a firm grip — on the Republican Party. 

I explain in a new column at The Hill, here.

Equality and Liberty After Dobbs

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Serena Mayeri

            In Constructing Basic Liberties, Professor James Fleming offers a robust and persuasive defense of substantive due process doctrines that underpin(ned?) constitutional rights to sexual and reproductive freedom, marriage, family, and parenthood. My post focuses on Chapter 8, where Fleming responds to critics who contend that the equal protection clause provides a superior home for these rights, and on Chapter 10, where he offers prescriptions for future liberal and progressive action. I consider both chapters in light of Dobbs v. Jackson Women’s Health Organization, decided after the book’s completion.

Chapter 8 makes two main arguments, one with which I agree, and one where our viewpoints diverge. First, Fleming argues that Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges wisely relied upon the due process clause, rather than equal protection, to uphold the rights at issue. Second, Fleming emphasizes that the substantive reasoning of each of these decisions (as opposed to their doctrinal grounding) invoked equality as inextricably intertwined with liberty and privacy and in so doing, offered satisfying accounts of why ensuring basic personal freedoms is integral to equal citizenship for all Americans. Liberty vs. equality, Fleming insists, is and always has been a false choice.

This second point—that liberty and equality are inseparable, indispensable, and mutually reinforcing—seems unassailable, before and after Dobbs. Critics of Kennedy’s jurisprudence from left and center, I think, would not dispute their symbiotic relationship. (For example, I take Catharine MacKinnon’s critique to be grounded in reservations about relying on privacy, not liberty or due process per se. And while Ruth Bader Ginsburg famously wished to ground abortion rights in equal protection/sex equality, she often underscored the importance of liberty and autonomy to women’s ability to attain equality with men).

Whose Substantive Due Process?

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Ilan Wurman

My sincerest thanks to James Fleming and Jack Balkin for inviting me—an (admittedly quirky) originalist—to write a contribution to this symposium celebrating and critiquing Professor Fleming’s newest book defending the last century of substantive due process doctrine. As the only originalist contributor, I suppose I should explain whether I am persuaded by Fleming’s “caution” to conservatives who might roll back this line of cases. I am not. That is not a reflection on Fleming’s opus, which is sophisticated and important. And that is not to say the book’s arguments will never be relevant to a properly originalist inquiry. But it is to say that the book is unlikely to persuade anyone who is not already inclined to agree with its central premises, which are contested and contestable.

Given that a mostly critical review warrants a substantial and careful discussion of the author’s work, I will not waste time on the obviously admirable achievements of the book: its compelling moral account that, Fleming persuasively demonstrates, both fits and justifies the modern cases; and its persuasive debunking of the “myth of two rigidly maintained tiers” of scrutiny (45) and its account of the “rational continuum of ordered liberty” (id.) the Court has used instead. Rather, I shall focus on whether the Constitution has a “morality of its own” that compels, or at least permits, the holdings of the modern cases; whether, even supposing the Constitution’s commitments to liberty and equality permit Fleming’s preferred moral approach, we should choose that approach over a libertarian or conservative approach to rights; and, finally, whether some of Fleming’s moral arguments might nevertheless be useful in a properly originalist inquiry under the Fourteenth Amendment.

The Wages of Crying Lochner!

Guest Blogger

We Are All Constitutional Libertarians Now

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Carlos A. Ball

            It is the best and the worst of times to write a comprehensive book defending the doctrine of substantive due process. It is the latter because the Supreme Court, weeks before the publication of Jim Fleming’s Constructing Basic Liberties, made mincemeat of fundamental rights doctrine (and of stare decisis) in Dobbs v. Jackson Women’s Health Organization (2022). It is the best of times for the same reason—a thoughtful defense of the doctrine seems needed more than ever after Dobbs.

            In the book, Professor Fleming carefully and methodically sets forth the structure and coherence of contemporary substantive due process doctrine, tracing it back to Justice Harlan’s dissent in Poe v. Ullman (1961). He defends what he calls a moral conception of the Constitution, one that embodies abstract moral and political principles constructed (the verb used in the book’s title) through the familiar (and, in Professor Fleming’s view, entirely legitimate) process of common law constitutionalism that reasons by analogy from one case to the next. The protection of basic fundamental rights that fall within the meaning of constitutional “liberty,” Fleming insists, calls for neither unrestrained judicial review nor the implementation of any particular theory of political morality, including the libertarianism of John Stuart Mill.  Instead, the doctrine calls for the gradual, careful, and reasoned expansion of basic liberty protections—limited to those that are essential to personal self-government—by analogizing to protections already in place. This is why and how the marital privacy recognized in Griswold v. Connecticut (1965) led to the general right to use contraceptives in Eisenstadt v. Baird (1972) that led to the right to choose an abortion in Roe v. Wade (1973) (as later limited by Planned Parenthood v. Casey (1992)) that led to the right to engage in sexual conduct in private in Lawrence v. Texas (2003) that led to the constitutionally protected right to same-sex marriage in Obergefell v. Hodges (2015).

            Constructing Basic Liberties contains powerful criticisms of originalism as a theory of constitutional interpretation. These criticisms are needed now more than ever following Dobbs’ moral vacuity in holding that the Constitution is silent about the ability of women, once pregnant, to have any say on whether to give birth on the ground that the men who adopted the Fourteenth Amendment—and who excluded women from the spheres of politics, self-governance, and rights—would have so thought if asked.

Balkinization Symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process

JB

This week at Balkinization we are hosting a symposium on Jim Fleming's new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

We have assembled a terrific group of commentators, including Aziza Ahmed (B.U.), Carlos Ball (Rutgers), Mark Graber (Maryland), Cathleen Kaveny (B.C.), Guha Krishnamurthi (Oklahoma), Sandy Levinson (Texas), Serena Mayeri (Penn), Doug NeJaime (Yale), Reva Siegel (Yale), and Ilan Wurman (Arizona State).

At the conclusion, Jim will respond to the commentators.

National Airport and Category Two of Youngstown

Gerard N. Magliocca

My next book will be on Justice Robert Jackson's concurrence in Youngstown. I want to share one new (I think) discovery that I've made about his opinion.

In Jackson's memoir about Franklin Roosevelt, he tells the story of how FDR got National (now Reagan) airport built. Congress could not agree on where the airport should go and how much money should be spent. Roosevelt eventually asked Jackson (then serving as acting Attorney General) to get it done. Jackson was able to scrounge up the money from various unused funds and found a suitable site. He admitted that Congress did not authorize construction of the airport, but added that Congress did not prohibit this course of action either. He concluded that the President may have violated the Constitution, but that no harm was done and that no lawsuit was brought.

Why am I telling you this? In Jackson's files on Youngstown, there is a paper with some notes sketching out the famous three categories. Under what is now Category Two, the final notation is "airport."

This Pudding Has No Theme

Gerard N. Magliocca

The January 6th Committee held its final public hearing today. While the Committee is doing some solid investigative work, there is a conspicuous lack of conclusions or recommendations from that body other than: "Don't vote for Donald Trump again." 

I hope that the Committee's written report will fill that gap. In particular, the report could do a real service by explaining how and why Section Three of the Fourteenth Amendment applies to the facts found by the investigation. Indeed, Representative Raskin alluded to this issue in his statement today. A Section Three analysis from the Committee would be useful for drafting enforcement legislation, evaluating eligibility challenges made against members-elect in future Congresses, and informing the inevitable litigation on Donald Trump's provisional presidential candidacy in 2024.

The Uneasy Libertarian-Racist Alliance

Andrew Koppelman

Only a few years after its greatest triumph, the Libertarian Party is collapsing, torn apart by an insurgency of alt-right sympathizers with racist tendencies.  Libertarianism, the idea that state power must be absolutely minimized, relies on ideas of individual rights that seem flatly inconsistent with racism.  And yet libertarian rhetoric has always had powerful attractions for those who wanted to resist racial equality.  How is that possible? 

There is in fact a deep connection, but it is one of psychology and political history rather than logic.

I explain in a new column at The Hill, here.

Koppelman on Segall's Supreme Myths podcast

Andrew Koppelman

Slaveholding and Judicial Opinions of William Gaston

John Mikhail

Last month I sent a letter to Georgetown University President Jack DeGioia about the slaveholding and judicial opinions of William Gaston, Georgetown's first student and the man for whom Gaston Hall is named. Its aim is to clarify the record and raise awareness about Gaston’s ties to slavery. The letter is now publicly available here, and a related story in The Hoya, Georgetown's main student-run newspaper, can be found here.