Wednesday, October 19, 2022

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.

            Professor Fleming also explains why substantive due process doctrine protects rights to personal autonomy, such as those involving contraception and sexual intimacy, but not those implicating economic liberties, including the right to contract. Economic liberties are sufficiently protected, he explains, through political and legislative processes. There are politically powerful forces defending and promoting capitalism and free trade in this country, making vigorous judicial intervention on their behalf neither necessary nor appropriate. Our country has many problems, but a lack of political and legal commitments to capitalist principles and practices does not appear to be one of them. (I will note that even the hallowed grounds of pitching mounds in major league baseball parks are now stamped with corporate logos.)

            Constructing Basic Liberties also effectively responds to the “unenumerated rights” critique of substantive due process raised by those who, ironically enough, do not hesitate before defending unenumerated rights in other contexts, including that of the Free Exercise Clause. The conceptual and interpretative distance between the word “liberty” and the constitutional right to engage in sexual conduct with another adult in private, for example, would seem to be no greater than that between the words “free exercise” of religion and, for example, the constitutional right of religious business owners to deny goods and services to customers based on their sexual orientation, gender identity, and even religion. There may be valid arguments in favor of the proposition that the Constitution recognizes the free exercise right and not the substantive due process one, but a difference in textual enumeration is not one of them. In each instance, there is a recognition of an unenumerated right (the right to have consensual sex or the right to turn away customers) through the judicial application of general and abstract constitutional principles to particular circumstances.

            Professor Fleming has another objective in his book: to convince us that the post-Griswold applications of substantive due process doctrine do not constitute judicial enactments of Mill’s libertarian harm principle (as Chief Justice Roberts claimed in his Obergefell dissent). Here Professor Fleming points both to the Court’s lack of explicit reliance on the principle in rulings such as Casey and Obergefell and to the fact that the Lawrence Court used the notion of harm as a shield rather than as a sword, that is to limit rather than to expand the right to engage in sexual conduct in private. Lawrence tells us that when sexual conduct in private risks harming social institutions (such as that of marriage in the case of adultery) or individuals (such as in the case of sex with minors), the state can restrict it.   

            I do not find the sword vs. shield distinction persuasive here. Unlike Professor Fleming, I believe the libertarian harm principle normatively explains much of the Court’s contemporary protections of personal liberties related to family, parenting, sexuality, and reproduction. It is true that the Court, from Griswold to Obergefell, did not explicitly rely on Mill and his famous principle. But considerations of harm (or their absence) played implicit roles in most of those cases. For example, given that opponents of same-sex marriage repeatedly claimed that the marriage bans were needed to prevent harm to children, the Court could not have decided Obergefell in the way it did without, at the very least, implicitly rejecting the harm claims. (It should also be noted that the Obergefell Court explicitly relied on the harms to children of same-sex couples engendered by the marriage bans to strike them down.) Even Professor Fleming, in distinguishing same-sex marriage bans from polygamy prohibitions, points to possible harms to children and to women engendered by the ways in which polygamy is practiced in North America as the main reasons for denying constitutional protection to the practice. Although it may be true that the courts, after the turn of the century, have generally deemed LGBTQ people to be “worthy” (to use Professor Fleming’s term) of liberty protections under the Constitution, while concluding the opposite of polygamists, those assessments of worthiness are partly linked, whether explicitly or implicitly, to questions of harms to third parties arising (or not) from the conduct subject to regulation.

            In rejecting a libertarian/Millian understanding of the Due Process Clause, Professor Fleming argues that the Court has evinced a richer or thicker understanding (in a moral sense) of “liberty.” Rather than defending constitutional “liberty” in what Professor Fleming deems to be the purely libertarian sense of  “cultivating individuality” through the protection of innumerable activities, the Court has protected only those activities that are essential to ordered liberty, that is that are “significant for personal self-government or deliberative autonomy.” This understanding of constitutional liberty, Professor Fleming insists, is not libertarian because it is not about promoting autonomy for its own sake or for realizing one’s individuality. Instead, he explains, “the cases engage in a project of extending rights already protected for some to others in order to enable them to pursue the same noble purposes and moral goods.” Those purposes and goods include the attainment of marriage’s civic objectives and the promotion of equal citizenship, as expanded to include women and LGBTQ people.

            As a descriptive matter, Professor Fleming presents a well-reasoned account of the Supreme Court’s fundamental rights cases recognizing liberty rights. At the same time, I wonder whether there is much light between a libertarian account of liberty that focuses, as Professor Fleming claims, on cultivating individuality and a moral account of liberty that focuses, as he prefers, on personal self-government. At the end of the day, both ways of understanding liberty are consistent with the libertarian objective of prioritizing individual choices over social conceptions of the common good as reflected in our laws. Similarly, both ways of understanding liberty prioritize negative rights and the right to be left alone over positive rights. (The fundamental right to marry is an interesting exception since the rights claimants in those cases, when challenging the state’s refusal to recognize their relationships, do not ask to be left alone, but instead insist that they are constitutionally entitled to have their relationships regulated as marital.) In fact, much of contemporary constitutional litigation involves repeated accusations by challengers, sometimes from the political left and sometimes from the political right, that the government, in the dispute in question, threatens rather than enables freedom. Under the relentless scrutiny of constant constitutional litigation, government action, implicating almost every conceivable policy area, is frequently seen as suspect or illegitimate, regardless of whether the state seeks to achieve paternalistic or egalitarian or redistributive or educational or health or safety (or fill-in-the-blank) objectives.

            Professor Fleming in this book and in an earlier one (co-authored with Linda McClain) defends a constitutive or formative understanding of individual rights protected by the Constitution aimed at “inculcating civic virtues, encouraging responsible exercise of rights, and fostering the capacities of persons for responsible democratic and personal self-government.” From this perspective, the recognition and enforcement of constitutional rights allow for greater participation in deliberative processes and democratic self-governance. At the level of theory, there is much to be said for this conception of constitutional rights. Yet, as a practical matter, the repeated use of constitutional litigation by activists across the political spectrum, as a means of attaining judicial vetoes of government policies they dislike, inevitably ends up prioritizing individual autonomy considerations at the expense of deliberative processes and the people’s ability to govern themselves. Our Constitution, as currently constructed (to use Professor Fleming’s preferred verb) through judicial interpretation, seems better equipped to promote personal self-governance than polity self-governance.

            As a progressive, I like the libertarian outcomes of due process constitutional litigation that prioritize individual autonomy and choice in matters related to family, parenting, sexuality, and reproduction. Conservatives, for their part, like the libertarian outcomes of constitutional litigation outside of the Liberty Clause. (If it were not for the continued stigma of Lochner, many more on the right would undoubtedly call for such outcomes within the Clause as applied to economic regulations and the protection of the right to contract.)

            For example, many conservatives embrace libertarianism by pushing for unrestrained electioneering expenditures by corporations and wealthy individuals under the Free Speech Clause. (The Supreme Court granted them their wish in Citizens United v. FEC (2010)). And they do the same in relentlessly pushing for the Second Amendment to be constructed in ways that protect the right of individuals as young as 18 to choose to possess firearms at the expense of government efforts to reduce gun violence. (The Supreme Court granted them their wish in District of Columbia v. Heller (2008)). And, to provide a third example (there are countless more), many conservatives promote libertarianism by vigorously pushing to have the First Amendment constructed in ways that provide religious business owners with the right to use criteria such as sexual orientation and gender identity to choose with whom to contract in the economic marketplace. (The Supreme Court is likely to grant them their wish by next summer.) In other words, despite Professor Fleming’s noble attempts to distinguish between libertarian theory and politics, on the one hand, and the methodical and piecemeal judicial construction of constitutional liberties, on the other, the reality is that we are all (at least some of the time) constitutional libertarians now.

            There is a part of me that welcomes and very much appreciates Professor Fleming’s vigorous defense of substantive due process doctrine in his new book. This is particularly true after Dobbs has threatened the continued viability of that doctrine in ways that no other case has done in recent memory. But those of us on the left side of the political spectrum should also keep in mind the costs for progressive objectives writ large that continue to accrue from a libertarian/hyper-individualistic understanding of the Constitution. Such an understanding offered (for fifty years) a right to choose a pre-viability abortion unencumbered by overt government coercion, but not a right to government subsidies for those who could not afford the medical procedure. A libertarian understanding of the Constitution (or at least one that is consistent with libertarian outcomes) has given us a right to sexual intimacy in private, but it has also stymied efforts, for example, to expand Medicaid coverage through Obamacare and to limit the ability of corporations and wealthy individuals to influence elections in the weeks before votes are cast. And such an understanding has given couples a right to marry regardless of gender, but it has limited, for example, the ability of society to use democratically enacted laws to protect us from the horrors of gun violence. And, by next summer, the Court is likely to use the Free Speech Clause as a vehicle through which to prioritize the liberty interests of business owners in the marketplace over the equality interests of groups protected by anti-discrimination laws.

            The publication of Professor Fleming’s excellent and thought-provoking book, when coupled with the Supreme Court’s evisceration of substantive due process doctrine in Dobbs, presents us with crucial challenges and opportunities. Many will continue to fight for vital yet limited gains that can be made to fit the types of libertarian constitutional understandings that seem to prevail most often before the Supreme Court. But perhaps others will take this as a moment to push for paradigm shifts that rely less on constitutionally protected rights to personal autonomy (whether they are found in the First, Second, Fifth, or Fourteenth Amendments) and more on the attainment of redistributive and egalitarian objectives through democratic deliberation and collective self-governance. For this reason, I entirely agree with Professor Fleming’s suggestion to liberals and progressives, made at the end of his book, that they pay more attention to legislatures, especially at the state and local levels, than to courts in order “not only to protect their rights but more generally to promote their substantive constitutional visions or political conceptions of justice.” 

Carlos A. Ball is a Distinguished Professor at Rutgers Law School. His most recent book is Principles Matter: The Constitution, Progressives, and the Trump Era. He can be reached at  





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