Boston University School of Law

James E. Fleming

The Honorable Frank R. Kenison Distinguished Scholar in Law
Associate Dean, Intellectual Life
Professor of Law

A.B., summa cum laude, Political Science, University of Missouri
J.D., magna cum laude, Harvard Law School
Ph.D., Politics, Princeton University

Phone: 617.353.2942
E-mail: jfleming@bu.edu

Full CV

Publications

Interests: constitutional law; constitutional theory; constitutional interpretation; legal philosophy; political philosophy; theories of democracy; torts

James E. Fleming writes in constitutional law and constitutional theory and teaches courses in constitutional law, constitutional theory, and torts. He is the author or co-author of five books:

  • Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) (with Linda C. McClain, Professor of Law and Paul M. Siskind Research Scholar at Boston University School of Law), his newest book, develops a civic and constitutional liberalism that takes responsibilities and virtues — as well as rights — seriously. It offers a conception of "ordered liberty" that appreciates the value of diversity in our morally pluralistic constitutional democracy and answers various charges that the U.S. constitutional system, in recent years, exalts individual rights over responsibilities, virtues, and the common good. The book uses the battle over same-sex marriage as a primary illustration and argues that a conception of "ordered liberty" supports marriage equality. One commentator wrote: "Numerous theorists have claimed that liberal rights come at the expense of individual responsibility and that liberal autonomy fosters indifference to civic virtue. In this important response, Fleming and McClain argue that contemporary liberalism not only accommodates but also requires both responsibility and virtue. Political liberalism is a form of ordered liberty, not an alternative to it." In a December 2013 New Books in Public Policy podcast, Fleming and McClain discussed Ordered Liberty and their framework for addressing the various criticisms of liberalism they wished to deconstruct therein.
  • Securing Constitutional Democracy: The Case of Autonomy (University of Chicago Press, 2006), Fleming's first book, criticizes conceptions of the Constitution as primarily securing procedural liberties and of judicial review as perfecting the processes of representative democracy (like those of John Hart Ely and Cass Sunstein) as incomplete. He elaborates a "Constitution-perfecting theory" — a theory that would reinforce not only the procedural liberties (those related to democracy) but also the substantive liberties (those associated with individual autonomy) embodied in our Constitution and presupposed by our constitutional democracy. Constitutional self-government, he argues, includes not only democratic self-government, with the polity making decisions for the common good, but also personal self-government, with individuals making the most significant decisions about how to live their own lives. Furthermore, his Constitution-perfecting theory would interpret the Constitution so as to make it the best it can be. One reviewer wrote: "Fleming's book is simply the best elaboration of the implications of political theory in the tradition of Rawls for the crucial issues in contemporary debates about the fundamental rights."
  • Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007) (with Sotirios A. Barber of University of Notre Dame) (designated as a Choice Outstanding Academic Title) argues for a philosophic approach to constitutional interpretation. Fleming and Barber systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid moral and philosophic reflection and choice in interpreting the Constitution. They also advance a conception of the Constitution not merely as a charter of negative liberties protecting people from government, but also as a charter of positive benefits imposing affirmative obligations upon government to pursue good things like the ends proclaimed in the Preamble. One commentator stated: "Many readers will undoubtedly find it a clearer presentation of a Dworkinian approach than Dworkin himself has achieved in any one of his many books." Another wrote: "It is a masterpiece of scholarship and scholarly teaching."
  • American Constitutional Interpretation (4th ed., Foundation Press, 2008) (with Walter F. Murphy and Stephen Macedo of Princeton University and Sotirios A. Barber), the casebook Fleming uses in teaching Constitutional Law and Constitutional Theory, conceives constitutional interpretation on the basis of three fundamental interrogatives: What is the Constitution? Who may authoritatively interpret it? and How ought it to be interpreted? Upon the publication of the first edition in 1986, one reviewer praised the book for its "constitutional objectivism," and titled the review "constitutional law as though the Constitution mattered." The reviewer concluded that the book "offered the Constitution and the Republic a splendid bicentennial anniversary present."
  • Fidelity to Our Imperfect Constitution (under contract with Oxford University Press), Fleming's next book, will criticize all forms of originalism, arguing that originalists would enshrine an imperfect Constitution that does not deserve our fidelity. The book argues that, if we aspire to fidelity to the Constitution, a moral reading is superior to originalism. A moral reading conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Fidelity to the Constitution on this understanding is not obedience to decisions already made for us in the past by people long dead or who were ignorant of the challenges and problems of our age. Fidelity rather is an attitude of commitment to making the frame of government work and to developing it in ways that better realize its ends and our aspirations. This book will further develop Fleming's arguments in previous books for a philosophic approach to constitutional interpretation and for a "Constitution-perfecting theory." One reviewer wrote that this book project promises to produce "the most forceful and careful and comprehensive critique of originalism to date."

He also is to be co-author of the fifth edition of Tort and Accident Law: Cases and Materials (with Robert E. Keeton and Lewis D. Sargentich of Harvard Law School and Gregory C. Keating of University of Southern California Law School), the casebook he uses in teaching Torts.

From 2008 to 2011, Professor Fleming was Editor of NOMOS, the annual book of the American Society for Political and Legal Philosophy. In that capacity, he edited or co-edited four books:

Professor Fleming received his J.D. magna cum laude from Harvard Law School and a Ph.D. in Politics from Princeton University. He practiced litigation at Cravath, Swaine & Moore before becoming a law professor. During the 1999-2000 year, he was a Faculty Fellow in Ethics in the Harvard University Center for Ethics and the Professions.

Since coming to Boston University School of Law in 2007, Professor Fleming has organized conferences entitled The Most Disparaged Branch: The Role of Congress in the 21st Century, Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book, Justice: What's the Right Thing To Do? A Symposium on Michael Sandel's Recent Book, Originalism and Living Constitutionalism and On Constitutional Obligation and Disobedience. He is organizing a major conference tentatively entitled "America's Political Dysfunction: Constitutional Connections, Causes, and Cures," to be held at Boston University in November 2013. All have been (or will be) published in Boston University Law Review. He is Faculty Advisor to Boston University Law Review.

Before joining the faculty of Boston University School of Law, Fleming was the Leonard F. Manning Distinguished Professor of Law at Fordham University School of Law. While at Fordham, he organized or co-organized many conferences in constitutional theory, including Fidelity in Constitutional Theory, The Constitution and the Good Society, Rawls and the Law and A New Constitutional Order?, together with Theories of Constitutional Self-Government, Integrity in the Law and Theories of Taking the Constitution Seriously Outside the Courts, all published in Fordham Law Review. He also co-edited (with BU Law Professor Linda C. McClain) a symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, published in Chicago-Kent Law Review. In 2007, Fordham Law Review published a symposium on Minimalism versus Perfectionism in Constitutional Theory, focusing on Professor Fleming's book, Securing Constitutional Democracy, along with Cass R. Sunstein's book, Radicals in Robes.

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