Jim Fleming and Linda McClain Give David Aldrich Nelson Lecture

The acclaimed professors spoke about constitutional interpretation and the future of marriage after Obergefell, the Supreme Court’s recent marriage equality decision.

Professors of Law Jim Fleming and Linda McClain delivered the 8th annual David Aldrich Nelson Lecture in Constitutional Jurisprudence on September 17 at the University of Missouri. The University’s Kinder Institute on Constitutional Democracy partnered with the Alexander Hamilton Institute to host the annual event, which this year also served as the University’s annual Constitution Day lecture. The Nelson Lecture honors David Aldrich Nelson, who served as a judge on the United States Court of Appeals for the Sixth Circuit.

McClain and Fleming gave a lecture entitled “Obergefell, Constitutional Interpretation, and the Future of Marriage.” In the paper’s abstract, the professors note that “Obergefell v. Hodges has been celebrated by liberals and condemned by many conservatives. Yet Justice Kennedy’s majority opinion is hardly the opinion that many liberals or progressives would have written. We shall acknowledge the opinion’s liberal and progressive strands, but bring out its conservative strands: for example, justifying the fundamental right to marry on the basis of the moral goods fostered by the institution of marriage. At the same time, the four dissenting opinions, though applauded by many conservatives, are curiously out of step with much of contemporary conservative constitutional theory. Our lecture will examine contemporary conflicts over law and morality through exploring Kennedy’s opinion of the Court along with the four dissenting opinions.”

McClain’s scholarship, focused on family law, gender and law, and feminist legal theory, has addressed the roles of government, family, and other institutions of civil society in fostering citizens’ capacities for self-government. Her work has developed a liberal feminist approach to family, marriage, and welfare law. She has authored several books and numerous articles on these topics, including her most recent paper, “Marriage, Conscience, and Bigotry,” on which she will hold a workshop while visiting the University of Missouri.

Fleming’s scholarship focuses on constitutional theory and jurisprudence, which are the topics of the five books he has authored or co-authored (most recently, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, the subject of this year’s BU Law Constitution Day program to be held on September 24). Fleming frequently organizes conferences in constitutional law; the papers in these programs are then published in the Boston University Law Review.

Together, McClain and Fleming have co-authored the book Ordered Liberty: Rights, Responsibilities, and Virtues, which addresses several of the arguments and theories surrounding same-sex marriage they will discuss in their Nelson Lecture. They are beginning work on a new book that will address the legal enforcement of morals.

Reported by Johanna Gruber (CAS’17)