Wednesday, October 26, 2022

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).

Fleming’s defense proceeds in four parts. First, Fleming traces the history of substantive due process. In so doing he identifies two different accounts—the Casey framework and the Glucksberg framework—that were at odds in Obergefell. He observes that the Casey framework better explains our substantive due process case law. Here Fleming models Substantive Due Process with what he calls the rational continuum of ordered liberty. Indeed he provides an excellent map—the aforementioned line drawing—of the surprisingly many tiers of scrutiny (p. 50).

Second, he considers how substantive due process doctrine may impact the vitality of morals legislation. He argues that Substantive Due Process is not a slippery slope to the end of all morals legislation, and he contends that morals legislation that we want to stand has other bases of support, beyond traditional moral disapproval.

Third, he disconnects Substantive Due Process from utopian theories of morality and economics, and argues in particular that substantive due process is not On Liberty incarnate.

Fourth, he examines the relationship between the Equal Protection Clause and Due Process Clause, arguing that they are intertwined and work together, rather than in opposition. To this end, Fleming mounts a defense of Casey and Obergefell as written, because they, he maintains, bring both arguments for equality and liberty together.

Finally, beyond the defense of Substantive Due Process, Fleming thinks about the future of constitutional jurisprudence. He seems to suggest a resurgence of the Glucksberg framework, which he believes will halt further expansion of rights under substantive due process. He ends with some words of optimism for liberals and progressives along with advice on how to move forward, and a warning to “jubilant conservatives” that this Supreme Court may lose the public’s trust and become more infamous than the Lochner Court.

On to my reactions: As a constitutional pluralist, Constructing Basic Liberties spoke to me. And as a scholarly matter, those in our camp have a resource we can point to when confronted with the aforementioned barbs. As those in the originalist camps might rely on Justice Scalia’s A Matter of Interpretation, pluralists can reference Constructing Basic Liberties as a careful and vigorous defense of Substantive Due Process against many of the basic objections.

At the same time, perhaps it speaks too much to constitutional pluralists like me. Fleming’s first argument for Substantive Due Process rests on its coherence with our broader case law. In so contending, Fleming appeals to inter alia Griswold, Loving, Roe, Casey, Lawrence, and Obergefell to make the case. Fleming draws upon the case law to construct what he calls the rational continuum of ordered liberty—a framework for understanding what rights obtain what type of scrutiny. And he contends that Substantive Due Process doctrine does the best job of modeling the rational continuum.

This is not guilty of a logical circularity. Rather, I understand Fleming’s approach as arguing that these cases, and the resulting rational continuum, are “fixed stars”—that is, features of constitutional law that constitutional theories cannot afford to negate. And because the doctrine of Substantive Due Process best preserves and explains these features, Substantive Due Process must be part of our constitutional jurisprudence.

The canonical fixed star is the result in Brown v. Board. For a constitutional theory to be (minimally) acceptable, it must preserve the result in Brown v. Board—and any theory that would negate that result is a bad theory of our constitutional law. (Elsewhere, Fleming has argued that Griswold is such a fixed star.)

But fixed stars are rather rare. Like Fleming, I too wish these cases, and the rational continuum, were fixed stars. But, with the exception of Loving, opponents to Substantive Due Process do not seem to regard these cases as fixed. Put another way, Fleming’s argument is a reductio ad absurdum: If we did not adopt Substantive Due Process, then we would suffer the absurdity of losing these fixtures of our constitutional jurisprudence. The opponents’ response: “Yes, exactly!” One person’s absurdity is another’s paradise.

Is this a failure of ecumenism? I don’t think so. Fleming’s project cannot be obligated to take on any set of premises and defend Substantive Due Process—especially where the contrary premises contradict the common ground.

That said, for Fleming’s project to succeed in persuading the wider audience, he must be right that it would be too costly to lose the corpus of Substantive Due Process cases. Fleming proffers reasons why these cases are critical to our constitutional system: they are essential for deliberative democracy and deliberative autonomy, and hence for securing our constitutional democracy (p. 37). But he also observes whether the rights in question are necessary to these ends is controversial (p. 42). He has provided us new tests, but it’s unclear to me that it convinces those not already convinced. For example, those who are against abortion and gay rights/marriage will still maintain it is unnecessary for or contrary to deliberative democracy and deliberative autonomy—and the language of the tests don’t block that conclusion. (In making this case about deliberative democracy and autonomy, Fleming draws upon his excellent 2006 book, Securing Constitutional Democracy: The Case of Autonomy—which I also have read.)

Here I think better to lean in on the force of the cases—and their facts—themselves, without punting to another perhaps unavoidably vague set of criteria. Loving is perhaps the best anchor—do we really want a polity without the protections against miscegenation laws, ushered in by Loving? And similar consensus appeals can be made to Griswold and Lawrence. The key is that if opponents would accede are fixed stars, then Fleming’s argument has its foot in the door. That’s because Fleming has made a robust case that Substantive Due Process does best in preserving these results, in accord with our constitutional theory. (There’s certainly more to say here, but I’ll pause in the interest of not overstaying my welcome.)

Relatedly, there is also a deeper methodological point afoot. Fleming offers assessments of various competing accounts of our constitutional jurisprudence. In judging these frameworks against each other, Fleming makes his rubrics refreshingly explicit.

When deciding between the Casey framework and Glucksberg framework, Fleming appeals to which framework best preserves the liberties necessary for deliberative democracy and deliberative autonomy, as well as which best preserves our precedent (ch. 2). These arguments arguably appeal to all of Bobbit’s modalities—without necessarily preferring text/original meaning.

When showing why Substantive Due Process can avoid the slippery slope to ending all morals legislation, Fleming interrogates how the doctrine conceives of rights, conceives of processes of constitutional change, addresses potential harms, and compares to wider civilizational and international norms (pp. 79–84). Fleming also contends that most proper morals legislation is supported by other bases—including prevention of harm, lack of consent, protecting institutions, and securing equal status (p. 103).

And when assessing what doctrines—namely, equality or liberty—should ground reproductive freedom, Fleming considers the criteria of elegance, doctrinal constraints, the quality of protection of the right, and ability to persuade those not persuaded (p. 180).

Generally, it is clear that Fleming’s analytic methods are pluralistic and holistic—and that is true of his method of constitutional interpretation. Again, the opponent’s response is natural: “That’s not how we judge the goodness of a constitutional theory!” The opponent may, for example, instead start and stop at the fidelity to text and history, perhaps through some form of originalism.

But then is Fleming’s meta-analysis of constitutional method just kicking the can down the road? This isn’t to criticize Fleming—again, I do not think we can require a completely neutral approach. One must be able to stand on some ground. But the move to meta-analysis may reveal the depth of the rift. Fleming and opponents may be riding different turtles—Fleming engages in pluralistic, holistic analyses all the way down, and his opponent simply never do.

Lastly, I think there is an important question about constitutional evolution lurking. Fleming considers whether the doctrine of Substantive Due Process spells the end of all morals legislation, and in particular he confronts Justice Scalia’s and Chief Justice Roberts’s slippery slope arguments in Lawrence and Obergefell. As part of this analysis, Fleming considers the example of a society where parents arranged all marriages for their children, without regard for their children’s wishes. Slowly over many years, people pressed for and were given more autonomy, till they made choices with respect to their marriages. Thereafter, people made choices to engage in same-sex relationships. And some 500 years after our initial point, same-sex marriage came to be recognized. Fleming asserts that, even if we recognized that allowing people more choice in their partner contributed to the recognition of same-sex marriage, “[w]e emphatically would not say that beginning to allow children some choice five centuries ago had put us on a slippery slope to recognizing same-sex marriage” (p. 74). Based on that, Fleming observes that the danger of the slippery slope—for Justice Scalia’s and Chief Justice Roberts’s arguments in Lawrence and Obergefell—is not that of gradual change but precipitous change.

I wonder whether this is right. Let’s fill out the example. Suppose in that society there were laws mandating the process of arranging marriages, and the question before a Court was whether such laws should be struck, as to grant people freedom of choice in partner. First, I can certainly imagine some hypothetical Justice on this society’s High Court worrying about expansion in the types of choices of which people may avail themselves: “Choice in marriage partner? What if they choose someone of the same sex?”

As a matter of constitutional law, I can also see a perhaps more principled objection by these opponents: The Constitution is silent on these issues, and so it’s not the business of the constitutional Court to address them.

Thus, it may not be the grade of the slope that renders a decision slippery and thereby unacceptable. Rather the focus might be on whether there is a chain of valid inferences—whatever the length—that take us from this putative constitutional decision to an absurd result. That slope—gradual or not—tells us whether the Constitution should be reaching the question in the first place.

As mentioned, Fleming tackles this head on, by providing a rubric for how we can assess the merit of the analogies between each end of the slopes. Fleming’s method, to my eye, is simply an elucidation of common-law reasoning (p. 44, p. 165). Now opponents may still resist the method, but that carries a high cost.

Is all constitutional change made through the method of common law interpretation, even when gradual and responsive to true societal consensus, illegitimate? Must such change occur only through the amendment process (or be sought through the retail political processes)?

I suspect opponents to Substantive Due Process may, at least tentatively, hold firm to answer yes, and it’s certainly a plausible view. But there are at least two further responses that Fleming can proffer:

First, the amendment process seeks such a robust supermajority that it’s nearly impossible to satisfy. So pointing to amendment as the exclusive vehicle of change is practically negating constitutional change. And over time, we have needed and will continue to need sub-supermajority constitutional change. Thus, a practically unamendable constitution may be a sufficiently bitter pill for people who understand the needs of a modern government.

Second, such a restrained view of amendment may be in tension with our commitment to the common law. The framers’ understanding of law included that courts would decide cases through common-law reasoning. A rigid view of interpretation asks the judiciary to surrender that method. But that common-law method may itself be a fixed star of our constitutional system. Indeed, that has seemingly led to a new wave of originalism—for example, Professor William Baude’s and Professor Stephen Sachs’s original law originalism—that embraces the original meaning of the Constitution and methods of legal reasoning, like common law reasoning, that appropriately change that original meaning.

Ultimately, the most potent defense of Substantive Due Process may simply be the prudential one: Adapt or die. For our constitutional republic to survive, we have to be able to fit this Constitution to modern and evolving demands. As Fleming shows, Substantive Due Process can accomplish this in a grounded and principled manner.

Guha Krishnamurthi is an Associate Professor at the University of Oklahoma College of Law. You can reach him by e-mail at

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