Constructing Basic Liberties: A Response to Eight Comments

Guest Blogger

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

James E. Fleming

            I am enormously grateful to Jack Balkin for hosting this symposium on my new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022) and to the contributors for commenting on it. In this brief response, I cannot possibly do justice to all of the thoughtful criticisms they make. Instead, I will address some of the most salient and recurring issues they raise. My primary aim will be to make clarifications where these careful readers have shown the need to do so. I will take up the comments in the order in which they were posted.

Carlos Ball, We Are All Constitutional Libertarians Now 

            Carlos Ball aptly opens by saying, “It is the best and the worst of times to write a comprehensive book defending the doctrine of substantive due process.” I suppose that every scholar aspires to write a timely book. Frankly, I wish my book were not so timely! And that the fabric of our constitutional essentials protected through substantive due process, like reproductive freedom, were secure rather than in tatters after Dobbs. 

            After some kind and generous praise for my book, Ball turns to my refutation of Chief Justice Roberts’s claim, in dissent in Obergefell, that substantive due process decisions have interpreted the Constitution to enact John Stuart Mill’s On Liberty, in particular, a libertarian harm principle. Ball “believe[s that the libertarian harm principle normatively explains much of the Court’s contemporary protection of personal liberties related to family, parenting, sexuality, and reproduction.” 

            I agree with Ball’s analysis more than might appear. There is no denying that generic ideas concerning harm to others have appeared in the opinions. I mean to deny that a moral reading of substantive due process doctrine reads a comprehensive liberal moral theory like Mill’s into the Constitution in the guise of interpreting it. Moreover, I show that the generic ideas concerning harm that we see in the opinions are neither peculiarly Millian nor even peculiarly liberal. Indeed, I observe that most of the substantive due process plurality and majority opinions from Roe through Obergefell were written by conservative justices. (Here I distinguish the preservative conservativism of Justices Harlan, the early Blackmun, Powell, O’Connor, Kennedy, and Souter from the counter-revolutionary or movement conservatism of Justices Scalia, Thomas, and Alito.) For example, I argue that Obergefell itself sounds more in conservative concern for the moral goods promoted by protecting the right to marry and the institution of marriage—for example, intimacy, commitment, and stability—than in libertarian cultivation of individuality or limitation of government because marriage equality does not inflict harm on others. 

            More generally, Ball usefully demonstrates the pervasive and the baleful influence of libertarian ideas in U.S. constitutional law today. I am confident that the book he is writing on these topics will be extremely valuable. In my book, I aimed in several ways to resist the spread of libertarian ideas in constitutional law. In Chapter 4, I developed five tools or forms of arguments for getting traction on libertarian (as well as traditional moralist) slippery slope arguments. In Chapter 6, I distinguished what was wrong with aggressive judicial protection of economic liberties under the Due Process Clause in Lochner from what is right with stringent judicial protection of personal liberties such as reproductive freedom and marriage equality in Roe/Casey and Obergefell. And in Chapter 9, I deplored the evisceration of the civic strain of First Amendment protection of freedom of speech in favor of libertarian deregulatory views. Throughout the book, I defended what I, following Michael Sandel, called civic or “moral goods” arguments for protecting freedoms as against libertarian arguments that people simply should be free to do whatever they want. 

            Indeed, Ball recognizes that my larger project, in this book as well as an earlier one, Ordered Liberty: Rights, Responsibilities, and Virtues (with Linda McClain), is to elaborate a civic liberalism that acknowledges the latitude government has for “inculcating civic virtues, encouraging responsible exercise of rights, and fostering the capacities of persons for responsible democratic and personal self-government.” He clearly shares my view, intimated at the end of the book, that there is no time like the present for liberals and progressives to “push for paradigm shifts” away from judicial enforcement of libertarian conceptions of individual liberty and toward legislatures, especially at the state and local levels, “not only to protect their rights but more generally to promote their substantive constitutional visions or political conceptions of justice.” 

Douglas NeJaime & Reva Siegel, The Wages of Crying Lochner! 

            I greatly appreciate Doug NeJaime and Reva Siegel’s statement that my book (and Chapter 6 on the “ghost of Lochner” in particular) offers a “powerful explanation” of how the modern substantive due process cases like Roe, Lawrence, and Obergefell are different from the old substantive due process cases like Lochner. I welcome their judgment that my account “complements” their analysis in their important recent article, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy. For theirs is one of the best pieces ever published on the subject. Unlike many scholars who primarily advance equal protection and “democracy-reinforcing” justifications for reproductive freedom and LGBTQ+ rights, NeJaime and Siegel do not disparage substantive due process justifications. Instead, like me, they emphasize that equality and liberty arguments reinforce one another. 

            The title of their post, The Wages of Crying Lochner, evokes John Hart Ely’s famous 1973 article, The Wages of Crying Wolf, which argued that Roe repeated the errors of Lochner. Their comment distills their longer article’s many cogent criticisms of Ely’s analysis, including his “blind spots” regarding gender as of 1973. It is ironic that Ely argued against indiscriminate crying of Lochner—by analogy to the boy who cried wolf—yet his own article has exacerbated indiscriminate crying of Lochner through citation of it. Worse yet, it has continued to do so long after Ely, in 1992, applauded Casey as rightly decided. By 1992, Ely had come to see that protecting reproductive freedom had a sound basis in the Constitution’s commitment to securing gender equality. He published his 1992 “fan letter” to the authors of the joint opinion in Casey in his book, On Constitutional Ground (1996). Alas, no one seems to have listened: (1) certainly not the liberals and progressives who have been embarrassed about rather than proud of substantive due process all these years, and (2) least of all Justice Alito in Dobbs, who wants to “own the libs” by quoting Ely’s article as Exhibit A in support of his assertion that Roe had repeated the “egregious” errors of Lochner. 

            In my book, I wrote that Chief Justice Roberts in dissent in Obergefell “parties like it’s 1973” with respect to substantive due process. The same is true, only more so, of Alito’s opinion in Dobbs. They write as if nothing has happened in constitutional law since 1973, when the Court decided Roe and then reaffirmed it repeatedly and built upon it in extending the line of substantive due process cases. Similarly, they ignore the significant steps our case law and our constitutional culture have taken toward recognizing gender equality as a public value that undergirds reproductive freedom. 

            Going forward, even though NeJaime and Siegel and I cannot hope to persuade the current Supreme Court that Roe, Casey, and Obergefell do not repeat the errors of Lochner, perhaps we can hope that more liberals and progressives will come to appreciate this. If Ely was capable of doing so, they should be able to as well! 

Ilan Wurman, Whose Substantive Due Process? 

            I thank Ilan Wurman for his judgment that my book “fits and justifies the modern pre-Dobbs cases with rigor and sophistication” in his “(admittedly quirky) originalist” contribution. I appreciate his conclusion that “under the best originalist accounts, some amount of moral reasoning may nevertheless be required, and in this respect Fleming’s moral justifications for much of the existing doctrine will be useful for an originalist Court.” 

            Would that the originalists on the Supreme Court today were “quirky” originalists of the type Wurman is. If they were, I might share more of his optimism that “[t]here may. . .be important overlap between the last century of substantive due process doctrine and the future of originalism.” But because they are not, Wurman rightly surmises that the primary audience for my book post-Dobbs is liberals and progressives whose vision of the Constitution is now a “Constitution in exile,” just as some conservatives’ vision was in exile from 1937 until recently. (I will return to the issue of “audience” below.) 

            Wurman’s originalist criticisms of some of my arguments about substantive due process imply that constitutional theory is just as polarized as U.S. politics is. The conservative originalists make no arguments about interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause, Equal Protection Clause, or Due Process Clause that stand a chance of persuading liberals and progressives, and vice versa. For example, liberals and progressives will not be persuaded that what Justice Robert Jackson characterized as “majestic generalities” or abstract principles like “freedom of speech” or “equal protection” are actually quite specific lawyerly terms of art. Nor will they be persuaded that what Eric Foner called the “Second Founding” or what Justice Brennan conceived as the “transformative purpose” of the Reconstruction Amendments to “make over the[] world” were to the contrary codifications of specific terms or a deposit of concrete historical practices as of 1868. 

            Underlying these particular polarized disagreements about the Fourteenth Amendment are more fundamental disagreements concerning the most basic question, What is the Constitution? Is it, as Justice Harlan in dissent in Poe and Justice Kennedy in Obergefell argue, a “basic charter” or framework of abstract normative commitments to be built out over time on the basis of experience, new insights, and moral progress? Or is it, as some originalists claim or presuppose, a code of detailed historical rules and deposit of concrete historical practices as of 1791 (ratification of the Bill of Rights of the original Constitution) or 1868 (ratification of the Fourteenth Amendment)? 

            If the Constitution is the former, my account of substantive due process indeed provides an account that fits and justifies “the Constitution’s own morality,” notwithstanding Wurman’s criticisms. If the Constitution is the latter, then the Supreme Court, in the name of fidelity to the Constitution, is likely to tear out many chapters of the “chain novel” that our practice of constitutional law has constructed since 1868 in favor of the specific expectations of racist, sexist, homophobic people who have been dead for well over a century. And it is going to disregard the significant and worthy achievements of our constitutional practice since then in pursuing and to some degree securing the blessings of liberty and the status of equality for all. As I argued in my previous book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, originalism of the variety we see in Dobbs would enshrine an imperfect Constitution that does not deserve our fidelity. 

Serena Mayeri, Equality and Liberty After Dobbs 

            Serena Mayeri’s valuable comment focuses on my account in Chapter 8 of the relationship between the Due Process and Equal Protection Clauses as grounds for protecting basic liberties and my prescriptions in Chapter 10 for future liberal and progressive action. She agrees with my arguments that liberty and equality are intertwined and mutually reinforcing rather than opposed to one another. I am encouraged by her suggestions about the equality arguments that remain available post-Dobbs (at least for now) in support of a number of basic liberties officially primarily grounded in the Due Process Clause. She constructively observes that such equality arguments together with liberty arguments remain available in state courts and legislatures after Dobbs. 

            But she disagrees with what she takes to be my arguments (1) that Casey, Lawrence, and Obergefell “wisely relied upon the Due Process Clause, rather than Equal Protection, to uphold the rights at issue” and (2) that there is an “implied imperative to select just one constitutional ground as a right’s sole basis.” I did not mean to make this argument or to imply such an imperative, and so I welcome the opportunity to make a clarification. 

            I meant to argue that in cases like Casey, Lawrence, and Obergefell, there are both compelling liberty arguments and compelling equality arguments—and that the Court should make both types of argument (as it did in Loving, which I praised for intertwining them). In fact, I argued that Casey, Lawrence, and Obergefell did make arguments implicating both the Equal Protection and Due Process Clauses. 

            Furthermore, I meant to show that “even when both due process and equal protection arguments are available, it might seem to the Court that one ground is more persuasive than the other for certain rights in certain circumstances.” (Pp. 179-80.) (I should have repeated the phrase “it might seem to the Court” in several places in order to make clear that I myself was not arguing that one ground was in fact the superior ground.) My analysis aimed to show, for example, why it might have seemed to Justice Blackmun in 1973 that liberty was a better ground than equality. (I noted that it was so far from his mind that restrictions on abortion denied gender equality that in the very next year, he voted with the majority in Geduldig, holding that discrimination on the basis of pregnancy was not discrimination on the basis of sex.) I also aimed to show how he might have come to see by 1992 that abortion restrictions denied both gender equality and due process, as he argued in his concurrence in Casey. I also suggested reasons why it might have seemed to Justice Kennedy in 2015 that due process should be the primary ground for recognizing marriage equality. 

            By contrast, I want to emphasize, my own normative argument is that the Due Process and Equal Protection Clauses are intertwined and both support cogent arguments for reproductive freedom and marriage equality. 

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

            I share Cathy Kaveny’s sense of “the world turned upside down” in many respects in U.S. constitutional law. Unfortunately, in a number of contexts the conservatives have used the tools liberals created to try to demolish the world liberals have sought to build with those tools. For example, strict scrutiny for racial discrimination originally was a liberal and progressive idea for eradicating vestiges of a caste system of second-class citizenship. But conservatives have been using it to invalidate programs aimed at securing the status of equality for all. In Chapter 3, I observe that Justice Scalia attempted to invert strict scrutiny for fundamental rights under the Due Process Clause—which liberals originated in Roe to stringently protect rights—to raise the bar for protecting “new” rights that liberals firmly believe should be stringently protected. 

            Kaveny claims that the world is turned upside down with respect to invocation of John Stuart Mill’s harm principle. On the one hand, she interprets Justice Alito’s opinion in Dobbs “at least tacitly, to invoke the harm principle.” On the other hand, she expresses puzzlement as to why I, a liberal, “explicitly distance[] [myself] from the harm principle.” (In Chapter 7, I argue that substantive due process cases like Roe and Obergefell have not been animated by a commitment to Mill’s harm principle, notwithstanding Judge Henry Friendly’s and Chief Justice Roberts’s contentions.) 

            To continue my response to Carlos Ball above, Kaveny’s comment gives me an opportunity to clarify that my account in Chapter 7 was interpreting Blackmun’s opinion in Roe and Kennedy’s opinion in Obergefell, not offering my own liberal account of the best justifications for reproductive freedom and marriage equality. In that sense, I did not mean to distance my own view from Mill’s harm principle. 

            The approach I take (in my book) to Mill in constitutional law is analogous to the approach John Rawls takes (in Political Liberalism) to Mill in political philosophy. Rawls interprets Mill as proposing a comprehensive moral view of the good life and argues that it would be inappropriate for the Supreme Court—which should operate within the limits of public reason—to invoke such a comprehensive view in justifying a judicial decision. Similarly, I suggest that the Court has deployed generic or ecumenical arguments about harm in substantive due process opinions, not Mill’s conception of the harm principle stemming from his comprehensive liberal view. 

            More generally, I mean to argue that the substantive due process opinions have been the product of common law constitutional interpretation—reasoning by analogy from case to case on the basis of experience, new insights, and moral progress, not a project of reading Mill’s comprehensive moral view into the Constitution in the guise of interpreting it. 

Sanford Levinson, Constructing Basic Liberties: A Meta Review 

            I am gratified by Sandy Levinson’s suggestion that my moral reading of our practice of substantive due process pays more “careful attention to actual cases” than Ronald Dworkin’s arguments for a moral reading of the Constitution did. Indeed, my account is less abstract and high-faluting than some might expect a moral reading to be. He asks who my audience is and answers his own question in part. His partial answer is, future generations who might be in a position to build upon and carry forward a Harlan-style practice of substantive due process through common law constitutional interpretation—should the liberal and progressive Constitution, which is now “in exile,” ever be brought out of exile. (I won’t say be “restored,” for our constitutional world will be a much different place if and when liberals and progressives ever regain a majority on the Supreme Court.) 

            Another partial answer is implicit in my proposals for liberal and progressive action in the nearer-term future through state courts and legislatures. State courts who appreciate substantive due process as a worthy yet incomplete practice, one hopes, will carry it forward as a matter of pursuing constitutional justice through developing state constitutional law. State legislatures and the people themselves, through legislation and popular referenda, might seek to further the aspirations of substantive due process by adopting measures aiming to secure ordered liberty and the status of equal citizenship for all during this time of U.S. Supreme Court repudiation and retrenchment surrounding federal substantive due process. 

            Levinson’s question provides a good occasion to address the question who is the audience for arguments in constitutional theory even in ordinary times. Many seem to think—or at least talk as if—arguments aim to persuade those with fundamentally opposing views. Hence, we hear people say things like, liberals must become originalists if they are to have any hope of persuading the conservative originalists who are on the Court. 

            But seeking to do this is a fool’s errand. Does anyone seriously believe that there was ever any hope of any liberal originalist argument ever persuading Justice Scalia of anything? Does anyone really think that even occasional, selective originalists like Justice Alito are ever going to be persuaded by any arguments ever made by liberal originalists? Within the Court itself, for example, how successful do we expect Justice Ketanji Brown Jackson to be in persuading Justice Thomas or any other conservative justice that the Fourteenth Amendment embodies an anti-caste principle rather than a principle of color-blindness? During the 1980s, Justices Marshall and Brennan made similar arguments and made no headway with the conservative justices on the Court at that time, who were not nearly as far to the right as the current justices are. 

            Instead, to return to Levinson’s question, my primary audience is liberals and progressives who have doubts about substantive due process. This includes, but is not limited to, liberals and conservatives who all these years from Griswold to Dobbs have scorned substantive due process (or at least had serious misgivings about it): (1) those who have mocked Justice Douglas’s majority opinion in Griswold; (2) those who have heaped contempt upon Justice Blackmun’s majority opinion in Roe; (3) those who have ridiculed the joint opinion in Casey; and (4) those who have jeered at Justice Kennedy’s majority opinions in Lawrence and Obergefell. I aim to present these cases in their best light, as an eminently defensible practice that is worthy of pride and extension. 

            My audience also includes conservatives in the style of Justice Harlan’s conservatism, especially those who appreciate the conservative strains in our practice of substantive due process through common law constitutional interpretation. Here a prominent illustration is Charles Fried, who as Solicitor General argued for overruling Roe in Webster, but who as a Harlan-style common law constitutional interpreter argued against overruling Roe and Casey in Dobbs. 

            Some will view my project—so understood—as preaching to the converted. But it is not. None of the above-mentioned liberals and progressives was ever really committed to substantive due process. They may be more open to being persuaded by a vigorous defense of substantive due process now, after Dobbs, than they were before. Indeed, I have spent a considerable portion of my career arguing with liberals and progressives who are dubious about substantive due process, the people for whom it has been a “painful thorn,” as Guha Krishnamurthi puts it, rather than a significant source of pride worthy fighting for. In this sense, I would count the book a success if it accomplished nothing more than firm up support for substantive due process among those who are persuadable. I aim to develop a more ecumenical defense of the practice of substantive due process than typically has been offered. I show that the cases protecting basic liberties have woven together an eclectic tapestry of arguments, including not just liberal or libertarian freedom of choice arguments and progressive equality arguments, but also civic liberal and conservative arguments. The latter stress the civic purposes and moral goods fostered by protecting such basic liberties. 

Guha Krishnamurthi, Pluralism, the Common Law, and Substantive Due Process 

            Guha Krishnamurthi picks up on the ecumenical character of my book, generously praising it for providing a “rigorous, comprehensive, and ecumenical defense of substantive due process.” His comments address an important aspect of the book that I should have made more explicit, namely, that my account of our practice of substantive due process shows it to stem from a constitutional constructivism that is a superior alternative to originalism. 

            Originalists profess fidelity to the Constitution and equate the Constitution with its original meaning. They typically assert or assume that there is no alternative to originalism besides a free-wheeling living constitutionalism that is unconstrained by law and incompatible with the rule of law. 

            Constitutional constructivists, by contrast, as I argued in my first book, Securing Constitutional Democracy: The Case of Autonomy (which Krishnamurthi mentions), conceive constitutional interpretation as a quest for the account that best fits with and justifies the legal materials, such as any given line of cases built out through common law constitutional interpretation. It takes the leading precedents as “provisional fixed points” that it has an obligation to fit and justify. Krishnamurthi frames this idea in terms of “fixed stars,” invoking Justice Robert Jackson’s famous image in Barnette. I think a “fixed star” sounds more immoveable than does a “provisional fixed point.” It also sounds more like a part of a firmament than simply a precedent that is probably worth reaffirming. But these are quibbles. 

            He says that it is “better to lean in on the force of the cases—and their facts” than to offer general substantive theories about the cases. This is what I aim to do in the book. That is why I observed that some readers might view it as more descriptive of our practice than my prior books in constitutional theory have been, and than they might have expected from me as a self-described Dworkinian moral reader. But my account is not merely descriptive. As a work of constitutional constructivism, it seeks to justify the cases as well, to construe them in their best light, and to build out the line of cases with coherence and integrity. 

            Krishnamurthi concludes with some reflections about the need for constitutional evolution. As I understand him, at bottom he agrees with my argument that a good deal of important change occurs through common law constitutional interpretation. This is as it should be in our constitutional scheme, which has a brief Constitution—a basic charter, framework, or general outline rather than a prolix legal code—and which is quite difficult to change by formal amendment. In fact, I have argued, though not in this book, that what Larry Sager has called our Constitution’s obduracy to formal amendment encourages if not necessitates change through common law constitutional interpretation or moral readings of the Court’s abstract commitments and framework. 

            Aziza Ahmed, Erasing the Past, Rethinking the Future 

            Aziza Ahmed’s instructive comment brings out many ways in which Justice Alito’s majority opinion in Dobbs, in the name of its purported originalism, erases the past: “[g]one from their history of abortion in the United States are the hard won fights of women to access healthcare, the reality that women have always had abortions, that many of these abortions were understood to be legally permissible, and the difficulties faced by women who cannot access the procedure.” 

            Indeed, the Court’s perverse historical analysis not only erases pregnant persons in favor of personifying fetuses, but also elevates the significance of a source from the 13^th Century (or what the dissent called the “Dark Ages”) over the significance of 49 years of life with Roe and “the lived experiences of women, girls, and others” who have needed abortions. Furthermore, Dobbs threw out Casey’s undue burden standard just as the Court in Hellerstedt and June Medical was finally beginning to put some teeth into that standard by looking at the burdens and impact of abortion restrictions that were justified on the basis of dubious health benefits. 

            Ahmed’s comment is a good place to conclude my response because she takes up the call of my final chapter for liberals and progressives to reexamine their reliance on courts and to rethink how more effectively to organize for and pursue reproductive freedom and justice, as well as other basic liberties, in the future. Social movement organizing, building new alliances, and pursuing diverse and multifaceted strategies, she wisely points out, will be necessary for sustainable change. Fortunately, we see that liberals and progressives already have begun to do this work, resulting in some promising Election Day 2022 successes concerning state referenda surrounding reproductive freedom in Vermont, California, Michigan, Kentucky, and Montana (as well as Kansas before them).

James E. Fleming is the The Honorable Paul J. Liacos Professor Of Law at Boston University School of Law. You can reach him by e-mail at jfleming@bu.edu.