James E. 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

Areas of Interest
Constitutional Law, Torts, U.S. Supreme Court
Contact
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 Our Practice of Substantive Due Process (under contract with University of Chicago Press), is Fleming’s current book in progress. The practice of “substantive due process” — protecting substantive liberties such as the right of women 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 will show the coherence and structure of substantive due process and defend 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 commitment to protecting ordered liberty and securing the status and benefits of equal citizenship to 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 promises  “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.”

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. 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 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 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. 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, 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. The papers from all of these conferences were published in Fordham Law Review.

Publications
  1. James Fleming, "Are Constitutional Courts Civic Educative Institutions? If So, What Do They Teach?" in The Impact of Law: On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies 95, Michael Welker & John Witte, eds., Evangelische Verlagsanstalt (forthcoming).
  2. Walter F. Murphy, James Fleming, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 6th edition, Foundation Press (2019).
  3. James Fleming, "The Unnecessary and Unfortunate Focus on “Animus,” “Bare Desire to Harm,” and “Bigotry” in Analyzing Opposition to Gay and Lesbian Rights," in Symposium on Linda C. McClain’s Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, 99 Boston University Law Review 2671 (2019).
    Scholarly Commons
  4. James Fleming, "Critical Dialogue," review of Bruce Frohnen & George Carey, Constitutional Morality and the Rise of Quasi-Law, Harvard University Press (2016), 16 Perspectives on Politics 183 (2018).
  5. Linda McClain & James Fleming, "Dworkin’s Perfectionism," in Dignity in the Legal and Political Philosophy of Ronald Dworkin , Lokendra Malik, Salman Khurshid & Veronica Rodriguez-Blanco, eds., Oxford University Press (2018). Scholarly Commons
  6. James Fleming, "Response to Bruce Frohnen’s review of Fidelity to our Imperfect Constitution: For Moral Readings and Against Originalisms," 16 Perspectives on Politics 187 (2018).
  7. James Fleming, "Comment on Amendment-Metrics: The Good, the Bad and the Frequently Amended Constitution," in The Foundations and Traditions of Constitutional Amendment , Richard Albert, Xenophon Contiades & Alkmene Fotiadou, eds., Hart Publishing (2017). SSRN | Scholarly Commons
  8. James Fleming, "Fidelity to our Imperfect Constitution: A Response to Five Views," in Symposium Discussion: Constitutional Interpretation: Moral Readings v. Originalisms, 11 Problema: Anuario de Filosofia y Teoria del Derecho 3 (2017).
    Publisher
  9. James Fleming, "The Unnecessary and Unfortunate Focus on “Animus,” “Bare Desire to Harm,” and “Bigotry” in Analyzing Opposition to Gay and Lesbian Rights: From Forbidding Illegitimate Emotions to Rejecting Inadequate Reasons," in Recht und Emotion II , Fabian Bernhardt & Hilge Landweer, eds., (2017).
  10. James Fleming, "Fidelity to Our Imperfect Constitution: A Reply to Six Views," 31 Constitutional Commentary 479 (2016).
    HeinOnline (BU) | HeinOnline
  11. James Fleming, Sotirios A. Barber, Stephen Macedo & Linda McClain, Gay Rights and the Constitution, Foundation Press (2016).
    Scholarly Commons | Publisher
  12. James Fleming, "The Moral Reading as a Practice: A Response to Three Comments on Fidelity to Our Imperfect Constitution," in Symposium on James E. Fleming's Fidelity to our Imperfect Constitution: For Moral Readings and Against Originalisms, 96 Boston University Law Review 1401 (2016).
    Publisher
  13. James Fleming, "Fidelity to Our Imperfect Constitution," in Symposium Is It Time to Rewrite the Constitution? 2015 Wisconsin Law Review Online 31 (2015).
    SSRN | Scholarly Commons | Publisher
  14. James Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, Oxford University Press (2015).
    Publisher | Scholarly Commons
  15. James Fleming, "Fit, Justification, and Fidelity in Constitutional Interpretation," 9 Problema: Anuario de Filosofia y Teoria del Derecho 53 (2015).
    SSRN | Scholarly Commons | Publisher
  16. James Fleming & Linda McClain, "Liberty," in Oxford Handbook of the United States Constitution 479, Mark Tushnet, Sanford Levinson & Mark Graber, eds., Oxford University Press (2015). SSRN | Scholarly Commons
  17. James Fleming, "The Moral Reading All Down the Line," 95 Boston University Law Review 1801 (2015).
    HeinOnline (BU) | HeinOnline | Publisher
  18. James Fleming, "The Substance of Self-Government," 11(2) Law, Culture, and the Humanities 184 (2015).
    Publisher
  19. James Fleming, Walter F. Murphy, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 5th ed., Foundation Press (2014).
    Scholarly Commons
  20. James Fleming, "Fidelity to Our Living Constitution," review of Bruce Ackerman, We the People, Volume III: The Civil Rights Revolution, Belknap Press of Harvard University Press (2014), 50 Tulsa Law Review 449 (2014). SSRN | Publisher | Scholarly Commons
  21. James Fleming, "Fidelity, Change, and the Good Constitution," in Symposium on Comparative Constitutional Law, 62 American Journal of Comparative Law 515 (2014).
    SSRN | HeinOnline (BU) | HeinOnline | Scholarly Commons
  22. James Fleming, "Introduction," in Symposium on Ronald Dworkin's Religion Without God, 94 Boston University Law Review 1201 (2014).
    SSRN | Scholarly Commons
  23. James Fleming & Linda McClain, "The Myth of Strict Scrutiny for Fundamental Rights," 12 Dartmouth Law Journal 1 (2014).
    HeinOnline (BU) | HeinOnline
  24. NOMOS LV: Federalism and Subsidiarity, James Fleming & Jacob T. Levy, eds., New York University Press (2014).
    Publisher | Scholarly Commons
  25. James Fleming & Linda McClain, "Ordered Gun Liberty: Rights with Responsibilities and Regulation," in Symposium America's Political Dysfunction: Constitutional Connections, Causes and Cures, 94 Boston University Law Review 849 (2014).
    SSRN | Scholarly Commons
  26. James Fleming, "Are We All Originalists Now? I Hope Not!" 91 Texas Law Review 1785 (2013).
    HeinOnline (BU) | HeinOnline | SSRN | Scholarly Commons
  27. James Fleming, "Fit, Justification, and Fidelity in Constitutional Interpretation," in Symposium On Constitutional Obligation and Disobedience: A Symposium on Abner S. Green's Against Obligation and Louis Michael Seidman's On Constitutional Disobedience, 93 Boston University Law Review 1283 (2013).
  28. James Fleming, "The Inclusiveness of the New Originalism," 82 Fordham Law Review 433 (2013).
    HeinOnline (BU) | HeinOnline | SSRN | Scholarly Commons
  29. James Fleming, "The New Originalist Manifesto," 28 Constitutional Commentary 539 (2013).
  30. NOMOS LIII: Passions and Emotions, James Fleming, ed., New York University Press (2013).
    Publisher | Scholarly Commons
  31. James Fleming & Linda McClain, "Ordered Liberty: Response to Michael Dorf," 93 Boston University Law Review 1481 (2013).
  32. Linda McClain & James Fleming, Ordered Liberty: Rights, Responsibilities, and Virtues, Harvard University Press (2013). Symposia Responses: “Ordered Liberty: A Response to Three Views,” James E. Fleming & Linda C. McClain, 28 Constitutional Commentary 435 (2013); Balkinization Symposium on Ordered Liberty, James E. Fleming & Linda C. McClain; Concurring Opinions Symposium on Ordered Liberty, James E. Fleming & Linda C. McClain. Podcast on New Books Network, James E. Fleming & Linda C. McClain (2013).
    Publisher
  33. James Fleming, "The Balkinization of Originalism," 2012 University of Illinois Law Review 669 (2012).
  34. James Fleming, "Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution," in Symposium Originalism and Living Constitutionalism: A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution, 92 Boston University Law Review 1171 (2012).
  35. NOMOS LII: Evolution and Morality, James Fleming & Sanford Levinson, eds., New York University Press (2012).
    Publisher | Scholarly Commons
  36. James Fleming & Linda McClain, "Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights," in Symposium Justice: What's the Right Thing to Do: A Public Lecture and and Symposium on Michael J. Sandel's Recent Book: Panelist Papers, 91 Boston University Law Review 1311 (2012).
    HeinOnline | SSRN | Scholarly Commons
  37. James Fleming, "Constitutional Theory, the Unitary Executive, and the Rule of Law," in NOMOS: Getting to the Rule of Law 156, James Fleming & Sotirios A. Barber, eds., New York University Press (2011).
  38. NOMOS L: Getting to the Rule of Law, James Fleming, ed., New York University Press (2011).
    Publisher
  39. James Fleming, "An Appreciation of Walter F. Murphy," 20:2 Law & Courts: Newsletter of the Law & Courts Section of the American Political Science Association 18 (2010).
    Publisher
  40. James Fleming & Sotirios A. Barber, "Constitutional Theory and the Future of the Unitary Executive," in Symposium Executive Power: New Directions for the New Presidency? 59 Emory Law Journal 459 (2010).
    HeinOnline (BU) | HeinOnline | Publisher
  41. James Fleming, "Presidential Succession: The Art of the Possible," in Symposium The Adequacy of the Presidential Succession System in the 21st Century, 79 Fordham Law Review 951 (2010).
  42. James Fleming, "Successful Failures of the American Constitution," in The Limits of Constitutional Democracy 29, Stephen Macedo & Jeffrey K. Tulis, eds., Princeton University Press (2010).
  43. James Fleming, "Taking Responsibilities as Well as Rights Seriously," in Symposium Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book, 90 Boston University Law Review 839 (2010).
    Publisher
  44. James Fleming, review of Robert Tsai, Eloquence and Reason: Creating a First Amendment Culture, Yale University Press (2008), eloquenceandreason.blogspot.com (2009). Publisher
  45. James Fleming, "Natural Law: U.S. Law," in The Oxford International Encyclopedia of Legal History, Stanley N. Katz, ed., Oxford University Press, 217 (2009).
  46. James Fleming, "Ronald Dworkin," in The Yale Biographical Dictionary of American Law, Roger K. Newman, ed., Yale University Press, 178 (2009).
  47. James Fleming, "Toward a More Democratic Congress?" in Symposium The Most Disparaged Branch: The Role of Congress in the Twenty-First Century, 89 Boston University Law Review 629 (2009).
    Westlaw | HeinOnline (BU) | HeinOnline
  48. James Fleming, Walter F. Murphy, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 4th ed., Foundation Press (2008).
  49. James Fleming, "The Odyssey of Cass Sunstein," in Symposium The Scholarship of Cass Sunstein, 43 Tulsa Law Review 843 (2008).
    Westlaw | HeinOnline (BU) | HeinOnline
  50. James Fleming, "Rewriting Brown, Resurrecting Plessy," 52 Saint Louis University Law Journal (2008).
    Westlaw | HeinOnline (BU) | HeinOnline
  51. James Fleming, "The Balkanization of Originalism," in Symposium The Maryland Constitutional Law Schmooze, 67 Maryland Law Review 10 (2007).
    Westlaw | HeinOnline (BU) | HeinOnline
  52. James Fleming & Sotirios A. Barber, Constitutional Interpretation: The Basic Questions, Oxford University Press (2007).
    Publisher
  53. James Fleming, "The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution," 75 Fordham Law Review 2885 (2007).
    Westlaw | HeinOnline (BU) | HeinOnline
  54. James Fleming & Benjamin C. Zipursky, "Rights, Responsibilities, and Reflections upon the Sanctity of Life," in Ronald Dworkin 109, Arthur Ripstein, ed., Cambridge University Press (2007).
  55. James Fleming, "'There Is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence," 74 Fordham Law Review 2301 (2006).
    Westlaw | HeinOnline (BU) | HeinOnline
  56. James Fleming, "The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations," 75 Fordham Law Review 537 (2006).
    Westlaw | HeinOnline (BU) | HeinOnline
  57. 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 23, Scott Hershovitz, ed., Oxford University Press (2006).
  58. James Fleming, Securing Constitutional Democracy: The Case of Autonomy, University of Chicago Press (2006).
    Publisher
  59. Linda McClain & James Fleming, "Constitutionalism, Judicial Review, and Progressive Change," review of Ran Hirschl, Towards Juristocracy, Harvard University Press (2004), 84 Texas Law Review 433 (2005). Westlaw | SSRN | Scholarly Commons
  60. James Fleming, "Judicial Review Without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts," 73 Fordham Law Review 1377 (2005).
    Westlaw | HeinOnline (BU) | HeinOnline
  61. James Fleming & Sotirios A. Barber, "War, Crisis, and the Constitution," in The Constitution in Wartime 232, Mark Tushnet, ed., Duke University Press (2005).
  62. James Fleming, "Lawrence's Republic," 39 Tulsa Law Review 563 (2004).
    Westlaw | HeinOnline (BU) | HeinOnline
  63. James Fleming, "Securing Deliberative Democracy," 72 Fordham Law Review 1435 (2004).
    Westlaw | HeinOnline (BU) | HeinOnline
  64. James Fleming, Walter F. Murphy, Sotirios A. Barber & Stephen Macedo, American Constitutional Interpretation, 3d ed., Foundation Press (2003).
  65. James Fleming, "The Missing Selves in Constitutional Self-Government," 71 Fordham Law Review 1789 (2003).
    Westlaw | HeinOnline (BU) | HeinOnline
  66. James Fleming, "The Lawyer as Citizen," 70 Fordham Law Review 1699 (2002).
    Westlaw | HeinOnline (BU) | HeinOnline
  67. James Fleming, "Fidelity to Natural Law and Natural Rights in Constitutional Interpretation," 69 Fordham Law Review 2285 (2001). Also in R. P. George, The Clash of Orthodoxies 183, ISI Press (2001) and in Natural Law: The International Library of Essays in Law and Legal Theory, R. P. George, ed., Ashgate (2003).
    Westlaw | HeinOnline (BU) | HeinOnline
  68. James Fleming, "A Further Comment on Robert P. George's 'Natural Law'," 70 Fordham Law Review 255 (2001).
    HeinOnline (BU) | HeinOnline
  69. James Fleming, "The Natural Rights-Based Justification for Judicial Review," 69 Fordham Law Review 2119 (2001).
    Westlaw | HeinOnline (BU) | HeinOnline
  70. James Fleming & Sotirios A. Barber, "The Canon and the Constitution Outside the Courts," 17 Constitutional Commentary 267 (2000).
    Westlaw | HeinOnline (BU) | HeinOnline
  71. James Fleming, "The Constitution Outside the Courts," 86 Cornell Law Review 215 (2000).
    Westlaw
  72. James Fleming & Linda McClain, "Foreword," in Symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review 289 (2000).
    Westlaw | HeinOnline (BU) | HeinOnline
  73. Linda McClain & James Fleming, "Foreword: Legal and Constitutional Implications of the Calls to Revive Civil Society," in Symposium Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review 289 (2000).
    SSRN | HeinOnline (BU) | HeinOnline | Westlaw
  74. James Fleming, "The Parsimony of Libertarianism," 17 Constitutional Commentary 171 (2000).
    Westlaw | HeinOnline (BU) | HeinOnline
  75. Linda McClain & James Fleming, "Some Questions for Civil Society-Revivalists," in Symposium Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review 301 (2000).
    SSRN | HeinOnline (BU) | HeinOnline | Westlaw
  76. James Fleming, "Fidelity, Basic Liberties, and the Specter of Lochner," 41 William & Mary Law Review 147 (1999).
    Westlaw | HeinOnline (BU) | HeinOnline
  77. James Fleming, "Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?" in Constitutional Stupidities, Constitutional Tragedies 162, W. N. Eskridge Jr. & Sanford Levinson, eds., New York University Press (1998).
  78. 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 248, Anita L. Allen & Milton C. Regan, eds., Oxford University Press (1998).
  79. James Fleming, "We the Unconventional American People," 65 University of Chicago Law Review 1513 (1998).
    Westlaw
  80. James Fleming, "Constitutional Tragedy in Dying: Responses to Some Common Arguments Against the Constitutional Right to Die," 24 Fordham Urban Law Journal 881 (1997).
    Westlaw | HeinOnline (BU) | HeinOnline
  81. James Fleming, "Fidelity to Our Imperfect Constitution," 65 Fordham Law Review 1335 (1997).
    Westlaw | HeinOnline (BU) | HeinOnline
  82. Linda McClain & James Fleming, "In Search of a Substantive Republic," review of Michael J. Sandel, Democracy's Discontent, Harvard University Press (1996) and Cass R. Sunstein, Legal Reasoning and Political Conflict, Oxford University Press (1996), 76 Texas Law Review 509 (1997). Westlaw
  83. James Fleming, "Original Meaning Without Originalism," 85 Georgetown Law Journal 1849 (1997).
    Westlaw | HeinOnline (BU) | HeinOnline
  84. James Fleming, "Securing Deliberative Autonomy," 48 Stanford Law Review 1 (1995).
    Westlaw | HeinOnline (BU) | HeinOnline
  85. James Fleming, "We the Exceptional American People," 11 Constitutional Commentary 355 (1994). Reprinted in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change 91, Sotirios A. Barber & R. P. George, eds., Princeton University Press (2001).
    Westlaw | HeinOnline (BU) | HeinOnline
  86. James Fleming, "Constructing the Substantive Constitution," 72 Texas Law Review 211 (1993).
    Westlaw | HeinOnline (BU) | HeinOnline
  87. James Fleming, "A Critique of John Hart Ely's Quest for the Ultimate Constitutional Interpretivism of Representative Democracy," 80 Michigan Law Review 634 (1982).
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