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.