As James Fleming notes in Constructing Basic Liberties: A Defense of Substantive Due Process, “Our system is not a majoritarian representative democracy but a constitutional democracy in which basic liberties related to personal self-government prevent majorities from dictating how people make certain important decisions fundamentally affecting their destiny, identity, or way of life” (p. 128). The US Constitution creates not a democracy but a liberal democracy: majorities rule—but not over everything. The fundamental question this distinction raises, of course, is where and how we properly draw that line, for the rights of individuals and the powers of government turn on often-implicit theoretical considerations as to how we are to read and interpret the Constitution and the laws that follow from it.
Both Fleming’s book and James Staab’s Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas are works of constitutional theory that fall into the camp of those critical of the originalist theory of constitutional interpretation, but they take differing approaches. Drawing on the distinction that Herbert Croly (who does not appear in the index) made in The Promise of American Life (1909) between the Hamiltonian and Jeffersonian traditions in American political thought, Staab argues that Justice Hugo Black should be categorized as Jeffersonian, Justice Antonin Scalia should be seen as Hamiltonian, and Justice Clarence Thomas is “an interesting blend of libertarianism and natural law” (p. 128). This is a densely packed 453-page book, 145 pages of which are endnotes, bibliography, and indexes.
Staab provides sketches of various doctrinal positions taken by Justices Black, Scalia, and Thomas, but the main problem is that these are sketches rather than extended accounts: they offer more breadth than depth. These sketches are interesting, but the reader easily loses sight of the author’s overarching argument, which is that Black, Scalia, and Thomas all are or claim to be originalists but nevertheless often end up with conflicting doctrinal positions. In other words, originalism obviously does not function as a consistent interpretive constraint. Making that case requires something more than pointing out those conflicting positions and, in effect, saying, “See?” Readers may be left wondering what this material tells us about US constitutional interpretation in general.
In Staab’s account of Scalia’s opinions and views of individual rights, for example, one struggles to find any mention, let alone explanation, of why these opinions and views are Hamiltonian or even originalist. We get sketches of doctrinal differences but little help in connecting them to the originalism question and to the broader question of constraint that seems to frame the book. Staab argues at the outset that all three justices are originalists, but he does not really connect that claim in any depth to the doctrinal differences he sketches among them. One can accept his claim that “if these three devout originalists reached contrary results in numerous areas of constitutional law (and sometimes quite dramatically so), then originalism’s ‘restraint’ value does not hold up in practice” (p. 3), but I would have liked to know more about how originalists themselves try to explain why originalist judges often reach conflicting doctrinal positions. Staab does not explore this. Reviewers cannot fairly criticize an author for not writing the book they might have preferred, but they can fairly criticize an author for not writing the book the author says he or she has written. What book did Staab want to write—one simply comparing the views of Black, Scalia, and Thomas across various doctrinal areas, which I suggest is what he did write, or the one he hints at—the Hamilton–Jefferson contrast, its relation to originalism, and the broader question of whether originalism is truly constraining?
At the end, Staab writes, “This book has examined originalism in operation rather than as a theoretical proposition” (p. 290). Paying attention to the latter would have helped clarify and focus the attention to originalism in operation. I am sympathetic to the case Staab wants to make, but in my view the book has not delivered fully on its promise. He has an impressive knowledge of the various doctrinal areas and differences, but this knowledge seems to get in the way of his broader analytical interests here: doctrinal positions and differences, differences in doctrinal positions as grounded in a Hamilton–Jefferson contrast, and the relation between the Hamilton–Jefferson contrast and originalism. Although Staab asserts his goal of making a broader argument about originalism, in my view this goal is overshadowed by his account of the comparisons and contrasts in doctrinal views among the three justices. Yet, despite these shortcomings, Staab’s analysis of Black, Scalia, and Thomas helpfully draws important distinctions in the reasoning of justices who often reach the same conclusions via differing intellectual paths.
Coming from his extensive writings on constitutional theory in general and on the Dworkinian idea of a moral reading of the US Constitution in particular, James Fleming focuses in Constructing Basic Liberties on the more specific question of the legitimacy of and justification for the concept of unenumerated rights. The general aim of this book is to defend the practice of substantive due process “by showing that the practice of constructing basic liberties that are essential for personal self-government in building out our commitment to ordered liberty is not illegitimate. Rather, it is integral to our constitutional democracy” (p. 3). Specifically, Fleming writes, “I defend the protection of ‘unenumerated’ substantive fundamental rights or basic liberties. I focus on substantive due process, but briefly mention the fundamental rights or interests strand of Equal Protection doctrine” (p. 20). He helpfully organizes his account into four parts: “Part I: Our Practice of Substantive Due Process,” “Part II: Substantive Due Process Does Not ‘Effectively Decree the End of All Morals Legislation,’” “Part III: Substantive Due Process Does Not Enact a Utopian Economic or Moral Theory,” and “Part IV: Conflicts between Liberty and Equality.” His approach, in brief, is to justify the practice of finding unenumerated moral rights in the Due Process Clause of the Fourteenth Amendment without accepting the Lochner notion of unenumerated economic rights.
At the risk of oversimplification, I suggest that the logic of the second sentence of the Fourteenth Amendment’s first section means that American citizens have certain fundamental rights guaranteed by the federal Constitution as a floor for whatever rights state constitutions may grant (Privileges or Immunities [P&I] Clause), that citizens cannot be deprived of these rights without due process of law (Due Process Clause), and that all citizens have the same rights equally (Equal Protection Clause). This formulation, of course, does not tell us precisely what those fundamental rights are or how we determine what they are, but it does assert the principle that we have certain fundamental rights as part of national citizenship, below which the states may not go; the contrast between Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (2022) illustrates this idea.
As perhaps the least disruptive doctrinal approach, however, Fleming is willing to live with the long-standing dismissal of the P&I Clause and work with the second option here: “Thus, to interpret the Fourteenth Amendment to secure basic liberties, the Court had to (1) overrule much of Slaughter-House (and resurrect the Privileges or Immunities Clause), (2) find another clause to bear the burden, or (3) look beyond the constitutional document for justification (for example, to read it to incorporate natural and inalienable rights)” (20). That clause, of course, is the Due Process Clause understood in substantive rather than merely procedural terms.
Fleming wants to defend substantive due process by establishing a middle position between grounding fundamental rights in particular historical practices and grounding rights in abstract moral theory, arguing that the Constitution itself must be understood to encompass a principled, concrete moral theory: it “embodies a morality of its own and … explicating and applying that morality is the function of constitutional interpretation” (p. 10). His desired middle position, then, is applying the idea of an aspirational moral scheme of ordered liberty implicit in the Constitution, as opposed to either importing abstract moral theory into it or viewing constitutional interpretation as a search for “a code of concrete historical rules whose meaning is to be determined by historical research to discover relatively specific original meanings of the framers and ratifiers” (pp. 150–51).
Put most completely, then, Fleming’s view is that “the principles that comprise a moral reading are implicit in and grow out of the practice of constitutional interpretation: We elaborate or construct the principles as we go along. We do not import them from external authority. Nor do we derive them from ready-made abstract theories” (p. 163). He associates this aspirational view with the Court’s analytical approach in Casey v. Planned Parenthood (1992) and identifies the idea of rights derivative only from past historical practices with the Court’s analytical approach in Washington v. Glucksberg (1997), asking whether the former or latter framework “better fits and justifies the cases protecting the rights” articulated under substantive due process. In other words, the former framework views the Constitution as a principled unity that may involve implications unseen at the time but that we now see, whereas the latter framework views the Constitution simply as a random collection of powers and rights—a grab-bag—that have no internal coherence or interconnection. Fleming advances the important claim that the interpretive conflict is not reducible to morality—philosophy—versus history, as originalists portray it, but rather that the two approaches are a conflict between competing moralities and not between morality (moral reading) and “raw” historical fact: “So, it all comes down to a battle between competing moralities, not one between those who are for morality and those who would end it” (p. 123).
Thus, Fleming’s book is, for scholars, a theoretically rich and provocative account of constitutional interpretation and, for students, one around which an interesting and theoretically informed course on fundamental rights could be built. I heartily recommend it.
