Constructing Basic Liberties: A Defense of Substantive Due Process

285 Pages·2022·2.344 MB·English

by  James E. Fleming

Constructing Basic Liberties

Constructing Basic Liberties
A Defense of Substantive
Due Process
JAmeS e. Fleming
The University of Chicago Press
Chicago and london
The University of Chicago Press, Chicago 60637
The University of Chicago Press, ltd., london
© 2022 by The University of Chicago
All rights reserved. no part of this book may be used or reproduced in any
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University of Chicago Press, 1427 e. 60th St., Chicago, il 60637.
Published 2022
Printed in the United States of America
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iSBn- 13: 978- 0- 226- 82139- 9 (cloth)
iSBn- 13: 978- 0- 226- 82140- 5 (paper)
iSBn- 13: 978- 0- 226- 82141- 2 (e- book)
DOi: https://doi.org/10.7208/chicago/9780226821412.001.0001
library of Congress Cataloging-in-Publication Data
names: Fleming, James e., author.
Title: Constructing basic liberties : a defense of substantive due process /
James e. Fleming.
Description: Chicago : University of Chicago Press, 2022. |
includes bibliographical references and index.
identifiers: lCCn 2021059029 | iSBn 9780226821399 (cloth) |
iSBn 9780226821405 (paperback) | iSBn 9780226821412 (ebook)
Subjects: lCSH: United States. Supreme Court. | Due process of law—
United States. | Civil rights—United States. | liberty. | law and ethics.
Classification: lCC KF4765 .F54 2022 | DDC 347.73/05—dc23/eng/20220128
lC record available at https://lccn.loc.gov/2021059029
♾ This paper meets the requirements of AnSi/niSO Z39.48-1 992
(Permanence of Paper).
For Linda, Sarah & Katherine

Due process has not been reduced to any formula; its content cannot be deter-
mined by reference to any code. The best that can be said is that through the course
of this Court’s decisions it has represented the balance which our nation, built
upon postulates of respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. if the supplying of content to this
Constitutional concept has of necessity been a rational process, it certainly has not
been one where judges have felt free to roam where unguided speculation might
take them. The balance of which i speak is the balance struck by this country, hav-
ing regard to what history teaches are the traditions from which it developed as well
as the traditions from which it broke. That tradition is a living thing. A decision of
this Court which radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound. no formula could serve as
a substitute, in this area, for judgment and restraint.
JUSTiCe JOHn mArSHAll HArlAn ii, Poe v. Ullman (1961) (dissenting)
The identification and protection of fundamental rights is an enduring part of the
judicial duty to interpret the Constitution. That responsibility, however, “has not
been reduced to any formula.” Poe v. Ullman (1961) (Harlan, J., dissenting). rather,
it requires courts to exercise reasoned judgment in identifying interests of the per-
son so fundamental that the State must accord them its respect. That process is
guided by many of the same considerations relevant to analysis of other constitu-
tional provisions that set forth broad principles rather than specific requirements.
History and tradition guide and discipline this inquiry but do not set its outer
boundaries. See Lawrence v. Texas (2003). That method respects our history and
learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The
generations that wrote and ratified the Bill of rights and the Fourteenth Amend-
ment did not presume to know the extent of freedom in all of its dimensions, and
so they entrusted to future generations a charter protecting the right of all persons
to enjoy liberty as we learn its meaning.
JUSTiCe AnTHOny KenneDy, Obergefell v. Hodges (2015)

COnTenTS
One / A Second Death of Substantive Due Process? / 1
Part I : Our PractIce Of SubStantIve Due PrOceSS
TwO / The Coherence and Structure of Substantive Due Process / 19
THree / The rational Continuum of Ordered liberty / 45
Part II : SubStantIve Due PrOceSS DOeS nOt “effectIvely
Decree the enD Of all MOralS legISlatIOn”
FOUr / is Substantive Due Process on a Slippery Slope to
“the end of All morals legislation”? / 73
Five / is moral Disapproval enough to Justify
Traditional morals legislation? / 99
Part III: SubStantIve Due PrOceSS DOeS nOt
enact a utOPIan ecOnOMIc Or MOral theOry
Six / The ghost of Lochner v. New York / 127
Seven / Does Substantive Due Process enact
mill’s On Liberty? / 149