James E. Fleming

James Fleming

The Honorable Paul J. Liacos Professor of Law


AB, summa cum laude, Political Science, University of Missouri
JD, magna cum laude, Harvard Law School
PhD, Politics, Princeton University


Biography

James E. Fleming writes in constitutional law and constitutional theory and is the author or co-author of five scholarly books:

 

  • Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022), is Fleming’s latest book. The practice of “substantive due process” — protecting substantive liberties such as the right to decide whether to terminate a pregnancy or the right of same-sex couples to marry under the Due Process Clauses of the U.S. Constitution — is deeply controversial. Against recurring charges that the practice is hopelessly indeterminate and irredeemably undemocratic, the book shows the coherence and structure of substantive due process and defends it as integral to our form of constitutional democracy. The list of basic liberties protected through this practice has been constructed through common law constitutional interpretation: reasoning by analogy from one case to the next, making complex normative judgments about what basic liberties are significant for personal self-government, and building out this line of cases on the basis of moral judgments about the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.
  • Fidelity to Our Imperfect Constitution (Oxford University Press, 2015), criticizes 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 further develops 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 provides “the most forceful and careful and comprehensive critique of originalism to date.” Another wrote: “Fleming emerges in this book as the ablest current defender of a ‘moral reading’ approach (long championed by Ronald Dworkin) that calls upon judges to make candid moral judgments in interpreting the Constitution that we have, not fashioning a new one.”
  • Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) (with Linda C. McClain, Robert Kent Professor of Law at Boston University School of Law), 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 US 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.” Another said: “Learned, balanced, humane, and clear, this book epitomizes the virtues of that reasonable constitutional liberalism that Americans should count among their proudest achievements.”
  • 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.”
  • 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. Every serious student of constitutional theory needs to confront Fleming’s distinctive and original vision.

Professor Fleming also is the author or co-author of two textbooks: American Constitutional Interpretation (Foundation Press, 6th ed., 2019) (with Walter F. Murphy, Sotirios A. Barber, and Stephen Macedo) and Gay Rights and the Constitution (Foundation Press, 2016) (with Sotirios A. Barber, Stephen Macedo, and Linda C. McClain).

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 2012, 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 JD magna cum laude from Harvard Law School and a PhD in Politics from Princeton University after earning his A.B. summa cum laude from University of Missouri. He practiced litigation at Cravath, Swaine & Moore for five years in New York City 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 (now the Edmond J. Safra Center for Ethics). During the 2016-2017 year, he was a Visiting Research Scholar in the Princeton University Program in Law and Public Affairs.

Since coming to Boston University School of Law in 2007, Professor Fleming has organized or co-organized a number of conferences in constitutional theory and legal and political philosophy, including 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; On Constitutional Obligation and Disobedience; America’s Political Dysfunction: Constitutional Connections, Causes, and Cures; and A Symposium on Ronald Dworkin’s Religion without God. The papers from all of these conferences were published in 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. 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. The papers from all of these conferences were published in Fordham Law Review. Fleming 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.

Publications

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  • James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (2022)
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  • Linda McClain & James Fleming, Civic Education in Circumstances of Constitutional Rot 101 Boston University Law Review (2021)
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  • Sotirios Barber, Stephen Macedo & James Fleming, The Constitution, the Common Good, and the Ambition of Adrian Vermeule The Constitutionalist (2021)
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  • James Fleming, Are Constitutional Courts Civic Educative Institutions? If So, What Do They Teach? Masterpiece Cakeshop as Teaching a Lesson Concerning The Price of Citizenship, in The Impact of the Law: on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Michael Welker & John Witte, Jr.,2021)
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  • James Fleming, Ronald Dworkin: A Eulogy, in Un Diamante Diminuto en la Arena Cosmica: Biografi­a Intelectual de Ronald Dworkin (2021)
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  • James Fleming, The Unnecessary and Unfortunate Focus on “Animus,” “Bare Desire to Harm,” and “Bigotry” in Analyzing Opposition to Gay and Lesbian Rights 99 Boston University Law Review (2019)
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  • Walter F. Murphy, James E. Fleming, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 6th ed. (2019)
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  • James Fleming & Bruce P. Frohnen, Response to Bruce Frohnen’s review of Fidelity to our Imperfect Constitution: For Moral Readings and Against Originalisms 16 Perspectives on Politics (2018) (book review)
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  • James Fleming & Bruce P. Frohnen, Critical Dialogue 16 Perspectives on Politics (2018) (book review)
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  • James Fleming, The Unnecessary and Unfortunate Focus on "Animus," "Base Desire to Harm," and "Bigotry" in Amalyzing Opposition to Gay and Lesbian Rights, in Recht Und Emotion II: Sphären der Verletzlichkeit (2017)
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  • James Fleming, Fidelity to Our Imperfect Constitution: A Reply to Six Views 31 Constitutional Commentary (2016)
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  • James Fleming, The Moral Reading as a Practice: A Response to Three Comments on Fidelity to Our Imperfect Constitution 96 Boston University Law Review (2016)
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  • James E. Fleming, Linda C. McClain, Stephen Macedo & Sotirios A. Barber, Gay Rights and the Constitution (2016)
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  • James Fleming, Rewriting Romer: From Illegitimate Emotions to Inadequate Reasons, in Recht und Emotion I: Verkannte Zusammenhänge (Hilge Landweer & Dirk Koppelberg,2016)
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  • James Fleming, The Moral Reading All Down the Line 95 Boston University Law Review (2015)
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  • Linda C. McClain & James Fleming, Dworkin's Perfectionism, in No. 15-45 Boston University School of Law, Public Law Research Paper (2015)
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  • James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (2015)
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  • James Fleming, Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution No. 15-13 Boston University School of Law, Public Law Research Paper (2015)
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  • James Fleming, Fit, Justification, and Fidelity in Constitutional Interpretation No. 15-10 Boston University School of Law, Public Law Research Paper (2015)
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  • James Fleming, The Substance of Self-Government 11 Law, Culture, and the Humanities (2015)
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  • James Fleming, Fidelity to Our Living Constitution 50 Tulsa Law Review (2015) (book review)
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  • James Fleming & Linda C. McClain, Liberty, in No. 14-62 Boston University School of Law, Public Law Research Paper (2014)
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  • James Fleming, Fidelity, Change, and the Good Constitution No. 14-42 Boston University School of Law, Public Law Research Paper (2014)
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  • James Fleming, Introduction, Symposium on Ronald Dworkin's Religion Without God 94 Boston University Law Review (2014)
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  • James E. Fleming & Jacob T. Levy, Federalism and Subsidiarity: NOMOS LV (2014)
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  • Linda C. McClain & James Fleming, Ordered Gun Liberty: Rights with Responsibilities and Regulation 94 Boston University Law Review (2014)
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  • James Fleming & Linda McClain, The Myth of Strict Scrutiny for Fundamental Rights 12 Dartmouth Law Journal (2014)
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  • James E. Fleming, Walter F. Murphy, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 5th ed. (2013)
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  • James Fleming, The Inclusiveness of the New Originalism 82 Fordham Law Review (2013)
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  • James Fleming & Linda McClain, Ordered Liberty: Response to Michael Dorf 93 Boston University Law Review (2013)
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  • James Fleming, Fit, Justification, and Fidelity in Constitutional Interpretation 93 Boston University Law Review (2013)
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  • James Fleming, Are We All Originalists Now? I Hope Not! 91 Texas Law Review (2013)
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  • James Fleming, The New Originalist Manifesto 28 Constitutional Commentary (2013) (book review)
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  • James Fleming & Linda McClain, Ordered Liberty: Response to Michael Dorf 93 Boston University Law Review (2013)
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  • James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (2013)
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  • James E. Fleming, Passions and Emotions: NOMOS LIII (2012)
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  • James E. Fleming & Sanford V. Levinson, Evolution and Morality: NOMOS LII (2012)
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  • James Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution 92 Boston University Law Review (2012)
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  • James Fleming, The Balkinization of Originalism University of Illinois Law Review (2012)
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  • Linda C. McClain & James Fleming, Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights 91 Boston University Law Review (2011)
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  • James E. Fleming, Getting to the Rule of Law (2011)
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  • James Fleming, Presidential Succession: The Art of the Possible, 79 Fordham Law Review (2010)
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  • James Fleming, Successful Failures of the American Constitution, in The Limits of Constitutional Democracy (Jeffrey K. Tulis, Stephen Macedo, & Jeffrey K. K. Tulis,2010)
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  • James Fleming, Taking Responsibilities as Well as Rights Seriously 90 Boston University Law Review (2010)
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  • James Fleming, Toward a More Democratic Congress? 89 Boston University Law Review (2009)
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  • Sotirios Barber & James Fleming, Constitutional Theory and the Future of the Unitary Executive 59 Emory Law Journal (2009)
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  • James Fleming, The Place of History and Philosophy in the Moral Reading of the American Constitution, in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin (2009)
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  • James Fleming, Natural Law: U.S. Law, in The Oxford international encyclopedia of legal history (2009)
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  • James Fleming, Ronald Dworkin, in The Yale Biographical Dictionary of American Law (Roger K. Newman,2009)
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  • James Fleming, Rewriting Brown, Resurrecting Plessy 52 St. Louis University Law Journal (2008)
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  • James Fleming, The Odyssey of Cass Sunstein 43 Tulsa Law Review (2008)
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  • Walter F. Murphy, James E. Fleming, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 4th ed. (2008)
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  • Benjamin C. Zipursky & James Fleming, Rights, Responsibilities, and Reflections upon the Sanctity of Life, in Ronald Dworkin (Arthur Ripstein,2007)
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  • James Fleming, The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution 75 Fordham Law Review (2007)
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  • Sotirios A. Barber & James E. Fleming, Constitutional Interpretation: The Basic Questions (2007)
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  • James Fleming, The Balkanization of Originalism 67 Maryland Law Review (2007)
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  • James Fleming, The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations 75 Fordham Law Review (2006)
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  • James Fleming, 'There Is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence 74 Fordham Law Review (2006)
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  • James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy (2006)
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  • James Fleming, Judicial Review Without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts 73 Fordham Law Review (2005)
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  • Sotirios A. Barber & James Fleming, War, Crisis, and the Constitution The Constitution in Wartime (2005)
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  • Linda C. McClain & James Fleming, Constitutionalism, Judicial Review, and Progressive Change 84 Texas Law Review (2005)
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  • James Fleming, Lawrence's Republic 39 Tulsa Law Review (2004)
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  • James Fleming, Securing Deliberative Democracy 72 Fordham Law Review (2004)
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  • James Fleming, The Missing Selves in Constitutional Self-Government 71 Fordham Law Review (2003)
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  • Walter F. Murphy, James E. Fleming, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 3rd ed. (2003)
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  • James Fleming, The Lawyer as Citizen 70 Fordham Law Review (2002)
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  • James Fleming, The Natural Rights-Based Justification for Judicial Review 69 Fordham Law Review (2001)
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  • James Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation 69 Fordham Law Review (2001)
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  • James Fleming, The Constitution Outside the Courts 86 Cornell Law Review (2000) (book review)
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  • Linda McClain & James Fleming, Some Questions for Civil Society-Revivalists 75 Chicago-Kent Law Review (2000)
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  • Linda McClain & James Fleming, Foreword: Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review (2000)
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  • James Fleming, The Parsimony of Libertarianism 17 Constitutional Commentary (2000)
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  • Sotirios Barber & James Fleming, The Canon and the Constitution Outside the Courts 17 Constitutional Commentary (2000)
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  • Linda McClain & James Fleming, Forword: Legal and Constitutional Implications of the Calls to Revive Civil Society 75 Chicago-Kent Law Review (2000)
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  • James Fleming, Fidelity, Basic Liberties, and the Specter of Lochner 41 William and Mary Law Review (1999)
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  • James Fleming & Linda McClain, The Right to Privacy in Sandel's Procedural Republic, in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy (Anita L. Allen & Milton C. Regan,1999)
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  • James Fleming & Linda McClain, The Right to Privacy in Sandel's Procedural Republic, in The Right to Privacy in Sandel's Procedural Republic (Anita L. Allen & Milton C. Regan,1999)
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  • James Fleming, We the Unconventional American People 65 University of Chicago Law Review (1998)
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  • James Fleming, Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?, in Constitutional Stupidities, Constitutional Tragedies (William N. Eskridge & Sanford Levinson,1998)
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  • James Fleming & Linda McClain, In Search of a Substantive Republic 76 Texas Law Review (1997) (book review)
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  • James Fleming, Original Meaning Without Originalism 85 Georgetown Law Journal (1997)
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  • James Fleming, Fidelity to Our Imperfect Constitution 65 Fordham Law Review (1997)
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  • James Fleming, Constitutional Tragedy in Dying: Responses to Some Common Arguments Against the Constitutional Right to Die 24 Fordham Urban Law Journal (1996)
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  • James Fleming, Securing Deliberative Autonomy 48 Stanford Law Review (1995)
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  • James Fleming, We the Exceptional American People Constitutional Commentary (1994)
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  • James Fleming, Constructing the Substantive Constitution 72 Texas Law Review (1993)
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  • James Fleming, A Critique of John Hart Ely's Quest for the Ultimate Constitutional Interpretivism of Representative Democracy 80 Michigan Law Review (1982) (book review)
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Courses

Jurisprudence: Contemporary Controversies Over Law & Morality (S): LAW JD 835

3 credits

This course will examine some classic issues of jurisprudence as they arise in contemporary controversies over law and morality. Topics will include the following: (1) The legal enforcement of morals. In Lawrence v. Texas, which recognized a right of gays and lesbians to intimate association, Justice Scalia protested in dissent that the case "effectively decrees the end of all morals legislation." Is Scalia right that there is really no distinction between same-sex intimate association and, to quote Scalia's list, "fornication, bigamy, adultery, adult incest, bestiality, and obscenity"? What are the proper limits on traditional "morals legislation"? (2) Grounds for justifying rights: protecting freedom to choose versus promoting moral goods. What are the best grounds for justifying rights in circumstances of moral disagreement (including strong polarization and constitutional rot)? For example, should we justify a right of same-sex couples to marry on the ground that government should respect people's freedom to choose whom to marry? Or instead on the ground that protecting such a right promotes moral goods (the same moral goods that opposite-sex marriage furthers): commitment to another human being, along with "the ideals of mutuality, companionship, intimacy, fidelity, and family" and "yearnings for security, safe haven, and connection that express our common humanity" (quoting Goodridge v. Department of Public Health, the Massachusetts decision protecting a right of same-sex couples to marry). (3) Government's role in promoting civic virtues and public values: conflicts between liberty and equality. To what extent may government inculcate civic virtues and promote public values? We will focus on conflicts between personal liberty (including religious liberty) and the use of antidiscrimination and marriage equality laws to secure the status of equal citizenship for gays and lesbians. For example, should laws recognizing same-sex marriage or protecting against discrimination on the basis of sexual orientation or gender identity grant exemptions to business owners who disapprove of such rights on religious grounds? (4) Governmental encouragement of responsibility: rights with responsibilities and regulation. To what extent does the protection of rights license irresponsible conduct and preclude government from encouraging responsible exercise of rights or regulating the exercise of rights in order to protect others from harm? We will examine such issues in the context of reproductive freedom and the individual right to bear arms. (5) Originalisms versus moral readings. Does constitutional interpretation involve determining the original meaning of the Constitution as a matter of historical fact (originalisms) versus making moral and philosophic judgments about the best understanding of our constitutional commitments (moral readings)? We will examine these competing approaches through assessing two competing approaches to the Due Process Clause: those of Washington v. Glucksberg and Planned Parenthood v. Casey. Does protection of the right to abortion or the right of same-sex couples to marry necessarily entail a moral reading of the Constitution? UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

SPRG 2023: LAW JD 835 A1 , Jan 19th to Apr 20th 2023
Days Start End Credits Instructors Bldg Room
Thu 2:10 pm 4:10 pm 3 James E. Fleming