By James E. Fleming. Chicago: The University of Chicago Press, 2006. 335pp. Cloth. $45.00. ISBN: 9780226253435.
Reviewed by Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] Oberlin.edu.
James Fleming has written a creative, original, and thought-provoking theoretical treatise that seeks to meld process (democratic-reinforcing) and substantive individual rights bases into an explanation of the process of constitutional decision making by courts and by constitutional theorists. Fleming asks, “What form of democratic government does the Constitution as a whole embody – specifically, is it a scheme of constitutional democracy that guarantees substantive rights like autonomy, or, to the contrary, a scheme of majoritarian representative democracy that guarantees neutral processes for representing conflicting interests but no such substantive rights?” (p.3). The primary institutional question that Fleming considers is “What should be the role of courts compared with legislatures in deciding cases implicating moral disagreements in our morally pluralist polity?” (p.3). The primary objective of the book is to provide an “overarching substantive theory” that “firmly connects privacy or autonomy to the substance and structures of constitutional democracy and to the roles and responsibilities of courts and legislatures in protecting constitutional norms” (p.3).
In the introductory chapter, two basic elements or themes for a theory of securing constitutional democracy are presented: It must define how to secure “the basic liberties that are preconditions for deliberative democracy, to enable citizens to apply their capacity for a conception of justice to deliberating and judging the justice of basic institutions and social policies, as well as the common good,” and second, it must secure and define the basic liberties that are preconditions for deliberative autonomy, “to enable citizens to apply their capacity for a conception of the good to deliberating about and deciding how to live their own lives”(p.3). The primary objective is to afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy. These themes reflect two bedrock structures of our constitutional scheme: deliberative political and personal self-government” (pp.3-4). In supporting autonomy rights granted in LAWRENCE v. TEXAS (2003) and PLANNED PARENTHOOD v. CASEY (1992), that is, not finding these cases “anomalous, unruly, or rootless,” Fleming seeks to “show that deliberative autonomy is rooted, along with deliberative democracy in the language and overall design of the Constitution. Each theme has a structural role to play in securing and fostering a constitutional democracy” (p.4). In doing so, Fleming provides a critique of and alternative to the process-perfecting theories of John Hart Ely and Cass Sunstein, which reject the centrality of substantive liberties except when they can be recast as [*611] procedural preconditions for democracy. For Fleming, substantive liberties, such as privacy, autonomy, liberty of conscience, and freedom of association are viewed as part of the Constitution, and not derived simply from democratic norms. These liberties are the basis for ensuring deliberative autonomy for the individual, with important implications for deliberative democracy. Drawing upon Rawls, while rejecting natural rights theory, Fleming provides a theory of “constitutional constructivism . . . which draws our principles and rights from our constitutional democracy’s ongoing practice, tradition, and culture” (p.6).
In Chapter 2 Fleming provides a critique of John Hart Ely’s process-perfecting theory that has often appeared in the literature: that Ely “avoid[s] giving effect to certain substantive constitutional provisions,” while denying its substantive basis (p.20). Fleming’s contribution is that he melds polity malfunction nodes of Ely’s theory to foundational rights principles in a way that informs both sides of the polity-rights divide among constitutional scholars and creatively links these constitutional theories to Rawls’ political theory. Fleming presents a fine overview of Ely’s theory. It is “a theory of representative democracy that is rooted in Dworkin’s principle of equal concern and respect”(p.25). Thus, for Fleming, Ely’s theory fails as a substantive theory because it “does not embrace substantive fundamental rights or values that lie behind the CAROLENE PRODUCTS framework”(p.25). Fleming seeks to remedy this problem. He views Ely as accepting the method and contents of Dworkin’s theory. Thus, it is a “process-perfecting theory,” that perfects representative processes, under the substantive value of equal concern and respect, which Fleming calls a “qualified utilitarianism rooted in equal concern and respect” (p.25). Chapter 2 is a critique Ely’s work at the level of substantive political theory, rather than “to belittle it as taking a pointless flight from substance to process [as Lawrence Tribe does], or to pontificate about the necessity of making constitutional choices in constitutional interpretation” (pp.26-27). Fleming criticizes Ely for “crying ‘substance’ too indiscriminately” (p.29). Fleming also argues that the problem with Ely’s theory is that it is merely a process-perfecting theory, and not a constitution-perfecting theory; therefore it does not give “meaningful effect to both the substantive and the procedural liberties embodied in our Constitution” (p.30). In a relatively few pages we review the major critiques of Ely’s process-perfecting theory, and how the Fleming constitution-perfecting theory builds upon, and significantly improves, our understanding of the substantive values in Ely’s theory. Here, unfortunately, and throughout the book, there is too much repetition of Fleming’s major argument and lesser points. There is no need to lead the reader so much when writing.
Chapter 3 offers a critique of Cass Sunstein’s process-perfecting theory, as enunciated in THE PARTIAL CONSTITUTION, as a way to demonstrate how Fleming’s constitution-perfecting theory is superior. Fleming argues that “Sunstein’s theory does not secure the preconditions for deliberative democracy, and that it recasts certain substantive liberties such as privacy, autonomy, and liberty of conscience as preconditions for deliberative democracy [*612] or, worse, leaves them out entirely” (p.9). Fleming continues, “Sunstein’s theory, like Ely’s, thus represents a flight from protecting substantive liberties,” and is partial, not whole because it would not fully secure the preconditions for deliberative autonomy. Furthermore, it is partial, not impartial, because it would not adequately protect citizens’ divergent conceptions of the good from coercive political power” (p.9).
Chapter 7 continues Fleming’s critique, in this case of Sunstein’s later work on judicial minimalism. It also criticizes Michael Sandel, who along with Sunstein provides “republican challenges to liberal theories of the sort that Rawls and I propound” (p.141). Fleming writes, “Sandel’s civic republicanism is too thick because it requires deeper agreement on goods and virtues than seems feasible, given the fact of reasonable moral pluralism, without intolerable state oppression. Conversely, Sunstein’s minimalist republicanism is too thin because, in the face of such pluralism, it settles for shallower agreement than is necessary to secure fundamental constitutional freedoms” (p.142).
Many scholars have made similar criticisms of Sandel and Sunstein, but Fleming’s contribution here is that he seeks a theory of constitution-perfecting that judges can follow that is neither too thick, nor too shallow. Fleming writes, “A theory like mine with affinities to Rawls’s theory is just right” (p.142). Analyses of LAWRENCE v TEXAS (2003) and privacy cases prior to LAWRENCE are skillfully used to demonstrate why Fleming’s theory is superior to those of Sunstein and Sandel. Moreover, Fleming argues that LAWRENCE is a synthesis of liberal and republican arguments, not unlike that found in his constitutional theory. Fleming makes the argument (perhaps too subtly) that this constitution-perfecting theory is not wide theorizing, because the Supreme Court in the late 20th and early 21st centuriew has followed its broad outlines.
I will speak to the problems that Fleming finds with Sunstein’s judicial minimalism, and less to Fleming’s accounts of Sandel and Rawls. Fleming writes, “Cass Sunstein objects that liberal theories like mine are too thick: they sponsor ‘maximalist’ constitutional interpretation by the judiciary and too deep a vision of the substantive Constitution” (p.142). Fleming does not like the fact that “For Sunstein, the domain of any substantive republic is outside the courts in the realm of deliberative democracy” (p.142). For Fleming, Sunstein’s call for minimalist Court decisions, incompletely theorized agreements on particular outcomes, and leaving issues undecided in order to allow political deliberation to proceed, forces the Court and Sunstein to “eschew both autonomy arguments about choices (such as those liberals like Ronald Dworkin and I make) and moral arguments about goods (such as those civic republicans like Sandel make)” (p.142).
Fleming opposes Sunstein’s argument that GRISWOLD v. CONNECTICUT (1965) and LAWRENCE v. TEXAS (2003) are too adventurous and too rooted in a moral argument for individual autonomy, and Sunstein’s calls for these decisions to be based on desuetude (a doctrine by which courts will decline to enforce laws that have [*613] fallen into a state of disuse, a condition Sunstein argues was met by the statutes at issue in both GRISWOLD and LAWRENCE). Sunstein’s minimalism as a method for deciding autonomy and privacy cases is viewed by Fleming as “a troubling withering away of the proper role and responsibility of courts as vindicators of constitutional rights;” “a disturbing retreat” from THE PARTIAL CONSTITUTION’s “potentially robust interpretation of the Equal Protection Clause” based on opposing laws “perpetuating second-class citizenship” in favor of “judicial incrementalism” (p.164).
Fleming makes a valid point when he argues that Sunstein’s judicial minimalism “constrains even the process of analogical reasoning” (pp.165-166), which for Sunstein is a process through which “a court must interpret the principle, rule, or standard that accounts for the result in the prior case and apply it to the new case” (p.166). Fleming interprets Sunstein’s theory of judicial minimalism as saying “Whether analogical reasoning takes a conservative or a critical view of social practices depends . . . not on the method itself, but on the ‘principles brought to bear on disputed cases’” (quoting Sunstein 1996, at p.194) (p.166). Fleming questions Sunstein’s theory of judicial minimalism because “There is reason to doubt that a court could engage in analogical reasoning or use a tool box of legal methods without recourse to some broader principle or grander theory in interpreting the proper scope of equality, whether it be an anti-caste principle (like Sunstein’s) [in THE PARTIAL CONSTITUTION] or the principle of equal concern and respect (like Dworkin’s)” (p.166).
Fleming’s critique of minimalism centers on Sunstein’s failure to respect robust implied fundamental rights (substantive rights) in the Constitution and on Sunstein’s vision of the limited institutional capacities of courts, as compared to more directly political accountable institutions, to decide divisive moral questions such as the right to marry for gays. Fleming writes, “They [courts] arguably would be abdicating their responsibility were they to side with Sunstein and against Dworkin on this dispute” (p.167). Finally, Fleming cogently argues that Sunstein’s judicial minimalism will not promote or enforce democratic deliberation. He writes, “Democratic deliberation about the common good is not the same as deliberation about the meaning and realization of constitutional principles and obligations, and it may well lead to flouting the Constitution outside the courts. Indeed, the Constitution properly interpreted outside as well as inside the courts may trump the common good and preclude deliberation about certain matters” (p.168).
The matters that Fleming is most concerned about that will be threatened by judicial minimalism are “questions raised by moral disagreement (especially about basic liberties)” (p.169). For Fleming, the Constitution “is not self-enforcing with respect to individual rights that are preconditions for the trustworthiness of the outcomes of the political process. Thus, a Constitution-perfecting approach to judicial review is warranted in these areas” (pp.169-170).
However, a problem with judicial minimalism that Fleming fails to address is the fact that Court decision-making is [*614] not simply about the selection and application of polity and rights principles, or concepts of the good, what I have called elsewhere internalist polity and rights principles (see Kahn 1994). Of equal importance is that the Supreme Court constructs the world outside the Court as it applies these principles. It is the mutual construction of polity and rights principles through their application to the lived lives of persons, through a process of analogy, which informs judicial decision-making (see Kahn and Kersch 2006). Fleming is correct when he makes the point that there is a “a disturbing retreat” in Sunstein’s work on judicial minimalism from THE PARTIAL CONSTITUTION’s “potentially robust interpretation of the Equal Protection Clause” based on the opposing laws “perpetuating second-class citizenship” (p.164). However, the more important problem with Sunstein’s judicial minimalism (and, I would add, with Fleming’s constitutional theory) is not simply the choice of the proper principle or constitutional rights theory, but rather his failure to recognize the importance to Supreme Court (and to lesser court) decision-making of the social construction process in which all courts are called upon to engage (see Kahn 2005). Most legalist constitutional scholars tend to center their analyses on the nature of equal protection and/or substantive due process principles (or theories of the good) as in Fleming’s case, or in utilitarian theory as in Sunstein’s case. They tend to tell judges what values and principles to follow.
Unfortunately, such theories do not model the process of Supreme Court decision-making in which there is a mutual construction of such principles in light of the lived lives of persons. This process forces non-originalist Justices, even conservative ones, to expand rights, even when policy predilections and the politics outside the Court would argue against the expansion of such rights. This mutual construction process is explored in the essays in Ronald Kahn and Ken I. Kersch’s THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT (2006). It is up to political scientists to view Supreme Court decision-making as a mutual construction of (internalist) principles and the world outside the Court when explaining Court action. We must do more than center our analysis on what legal or political theory the justices should follow. When we do this, constitutional theory will move beyond arguments about why one scholar’s set of principles or theory is best, to more careful explanations of why doctrinal change occurs – even when past principles and election returns augur against such change.
To his credit, Fleming rests his argument not simply on his view of the Constitution and constitutional theory, but on the fact that in LAWRENCE, ROMER, and other cases he sees the melding of deliberative autonomy and deliberative democracy values. Yet we need to ask what causes a conservative court in a conservative era to embrace such expansive values. It has something to do with the role of the Supreme Court in our constitutional system and its institutional norms and processes, and not simply an argument of what constitutes the good, which leads to these results.
In Chapter 4 Fleming outlines his theory of securing constitutional democracy by [*615] exploring the two primary themes of deliberative democracy and deliberative autonomy. More specifically, Fleming presents the rudiments of Rawls’ reformulation of his theory of justice from one of fairness to one of political constructivism, and then he transforms Rawls’ theory of political constructiveness into a theory of Constitutional constructiveness. That is, Fleming “uses Rawls’ guiding framework of equal basic liberties to help orient our deliberations, reflections, and judgments about our Constitution and constitutional democracy” (p.65). Fleming does not ask the reader to accept all that Rawls requires for there to be justice, nor does Fleming rely on Rawls as an authority for what the Constitution means (p.64). Rawls’ framework is used to argue that any theory of constitutional constructivism must support both deliberative democracy (and the place of courts and political institutions in a democracy) and deliberative autonomy, defined as “liberty of conscience, freedom of intimate association, decisional autonomy, decisional privacy, spatial privacy, bodily integrity, and an anti-totalitarian principle of liberty,” which are “the preconditions for personal self-government or for deliberation and decision by citizens – individually and in association with others – about how to lead their own lives”(p.72).
More than Sunstein in his work on judicial minimalism, Fleming accepts the requirement that courts should not accept the status quo as neutral. Fleming’s constitutional constructivism is dualist in several senses. It accepts the constituent power of “We the People,” as expressed in the higher law of the Constitution, as different from the ordinary power of the people in legislative bodies. Fleming writes, “[constitutional constructivism] preserve[s] the fundamental rights ordained and established by the higher law of the Constitution against encroachments by ordinary law.” Thus, it rejects monist views of our scheme, which emphasize popular sovereignty and majoritarianism over and against fundamental rights, and therefore equate popular sovereignty and majoritarianism with the British model of parliamentary sovereignty” (p.76). Constitutional constructivism is dualist in the second substantive sense of conceiving “the content of the higher law of the Constitution as a synthesis of the conflicting traditions of civic republicanism and liberalism” (p.76).
Thus, Chapter 4 is primarily an exposition of how these two traditions meld in his theory of constitutional constructivism. This melding becomes far clearer if one reads Chapter 7 before reading Chapter 4. Reading the chapters in this order also will make it clear to the reader in what ways there is a foot on the scale in favor of individual rights and liberalism over civic republicanism in Fleming’s theory of constitutional constructivism.
Chapter 5 “elaborate[s] the theoretical underpinnings and scope of deliberative autonomy in the matrix values of liberty of conscience and freedom of association” and “show[s] how a conception of deliberative autonomy can justify and impart coherence and structure to a list of familiar ‘unenumerated’ fundamental rights commonly classed under privacy, autonomy, or substantive due process” (p.11). In this chapter, the reader is [*616] provided with a clear notion of what Fleming views as the unenumerated or implied fundamental rights which constitute deliberative autonomy and a listing of cases where we can see such rights.
Fleming does a fine job in showing that these values inform the important majority opinions in PLANNED PARENTHOOD v. CASEY (1992) and LAWRENCE v. TEXAS (2003), and are less present in the opinion of originalist Justices. He builds on this case analysis to demonstrate his opposition to Ely’s and Sunstein’s process-perfecting theory, as well as Scalia’s and Bork’s originalism. Fleming ends the chapter with an analysis of what he means by deliberation, and why deliberative autonomy is necessary for individual and collective decision-making in a democratic society. He argues effectively why the search for a vision of deliberative autonomy is a bounded process; it is not simply deciding what higher law requires and applying such laws. Nor is it an out-of-control search for unenumerated rights. Fleming argues that it is limited to “significant basic liberties” (p.109).
Drawing on Rawls, Fleming writes, “Basic liberties are conceived as primary goods (or all-purpose goods) that in principle are significant to all persons, no matter what their conceptions of the good” (p.109). Unenumerated rights which should be allowed are those that foster deliberative autonomy and “the ordered reproduction of society over time, but nonetheless be prohibited from standardizing people with respect to such matters because they are so important” (p.110). The most important check on wild unenumerated rights for Fleming, is that in deciding on such rights they must overcome the hurdle of meeting the “compelling, important, or even merely legitimate interests” of society, while accepting “the general presumption [by Rawls] against imposing legal and other restrictions on conduct without sufficient reason” (p.110). Therefore, the controlling mechanism for battling wild unenumerated rights is their consideration in light of theories of liberty and the interests of society. There is little discussion of how the decision-making process and institutional norms of the Supreme Court and lower courts limit wild rights expansion by courts.
Chapter 6 is an important chapter. Fleming proposes a reconception of the substantive due process inquiry that is based on the recognition that ‘unenumerated’ fundamental rights are significant to deliberative autonomy. Fleming argues that principles embodied by the Constitution are “aspirational” in the sense that they may not be fully expressed, and may even be contradicted, by historical practice. Fleming provides a competent overview of what the “rational continuum of ordered liberty” has meant “from PALKO to LAWRENCE.” At the core of the analysis is a discussion of when the Court has viewed traditions as “aspirational principles” or “historical practices, narrowly conceived” (p.114). Fleming argues that PALKO, GRISWOLD v. CONNECTICUT (1965), and ROE v. WADE (1973) view traditions as aspirational principles, while BOWERS views tradition as historical practices, narrowly conceived. He than argues that in PLANNED PARENTHOOD v. CASEY (1992) and LAWRENCE v. TEXAS (2003), the [*617] Court returned to a third view of liberty – Harlan’s notion that there is a rational continuum of liberty that views tradition as a “living thing,” which is closer to aspirational principles than to historical practices (p.114). Fleming offers a valid critique of Justice White’s majority opinion in Bowers as narrowly conceiving due process inquiry as “a backward-looking question concerning historical practices, stripped of virtually any aspirational force or critical bite with respect to the status quo,” and Justice Scalia’s plurality opinion in MICHAEL H. v. GERALD D. (1989) as “an attempt to narrow the BOWERS due process inquiry even further” (p.115). Fleming applauds Justice Brennan’s criticism of Justices who view the Constitution not as a “living charter,” but as a “stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past” (pp.115-116). Thus, a “guiding framework” of Fleming’s constitutional constructivism is to view due process analysis as aspirational with regard to questions of deliberative democracy and autonomy.
Much of this chapter is a reformulation of Justice Harlan’s dissent in POE, and critique of majority, plurality, and dissenting opinions in GRISWOLD, CASEY, LAWRENCE as well as MICHAEL H. and WASHINGTON v. GLUCKSBERG (1997). LAWRENCE is viewed as a return to aspirational values after their denial in BOWERS. Therefore, constitutional constructivism, as seen in Kennedy’s majority opinion in LAWRENCE represents a return to a “CASEY-like understanding of aspirational principles and a repudiation of Scalia’s and Rehnquist’s conceptions of historical practices” (p.125). Finally, Fleming views “Constitutional constructivism’s guiding framework, with its criterion of significance for deliberative autonomy,” as “chart[ing] a middle course between Scalia – the rock of liberty as hidebound historical practices – and Charybdis – the whirlpool of liberty as unbounded license – in the due process inquiry” (p.126).
The central argument in the book is that, within substantive due process jurisprudence, one must consider both deliberative autonomy (substantive individual rights) and deliberative democracy (rights to political process), and accept that these are important homologous and related values in constitutional theory and practice. The separation between process and substantive rights values which informs most constitutional theory is rejected by Fleming. The operationalization of why this separation is not possible and has not been present in constitutional law, as seen in due process analysis, is a core contribution of this book. As explored above, to understand the relationship between these rights and polity principles one must move beyond a grand constitutional theory and discussion of cases; one must provide a systematic theory of the social construction process over time and compare them among doctrinal areas.
Part III of the book explores how Fleming’s theory could be adjusted in the following ways: to secure the family of basic liberties as a whole (Chapter 8), to preserve the constitutional order itself in circumstances of war and peace (Chapter 9), and to perfect the Constitution through the pursuit of what Fleming calls “‘happy endings’ in [*618] constitutional interpretation” (p.13) – that is, “perfecting our imperfect Constitution” (p.15). Part III is less successful than Parts I and II. With each chapter, the reader gets further and further from arguments exploring directly the theory of constitutional constructivism, and its core substantive elements, found in the first seven chapters
Chapter 8 draws upon Rawls to argue that the Court must center constitutional analysis on the clash of higher order values or basic rights principles as a whole, and not at the level of the pursuit of conceptions of the public good in utilitarian terms or the imposition of perfectionist values (p.174). Therefore, no basic liberty value by itself is absolute. By way of example, Fleming argues that the First Amendment should not be read as including absolutist principles of the right to political speech but, when implicated, requires the other basic principles in the Constitution be considered when deciding First Amendment Cases. Fleming centers on how he would decide cases involving the clash of freedom of expression, under the First Amendment, and the concern for equal citizenship under the Equal Protection Clause. He criticizes BUCKLEY v. VALEO (1976) and FIRST NATIONAL BANK v. BELLOTTI (1978), cases which invalidate campaign finance limitations, R.A.V. v. CITY OF ST. PAUL (1992), which found an anti-bias (hate speech) law to be unconstitutional, and BOY SCOUTS OF AMERICA v. DALE (2000) which allowed the Boy Scouts to prohibit homosexuals from its ranks, as too absolutist in defining what First Amendment speech requires.
Fleming argues that the Court should have decided such cases in terms of securing the right of equal citizenship as well as First Amendment speech rights, since both of these rights are required if the Constitution is to protect both deliberative autonomy and deliberative democracy, the two keynote themes in his theory of constitutional constructivism. The Court must consider all basic liberties at issue in a case, that is, take all basic rights seriously. Moreover, justices should not balance at the level of utility as Justice Frankfurter or and Sunstein would have us do. Constitutional constructivism “gives priority to the family of basic liberties as a whole and thus stringently protects not only the political liberties associated with deliberative democracy but also the personal liberties associated with deliberative autonomy” (p.179). Personal self-government and political self-government are important values which support each other. Under such a framework, ROBERTS v. UNITED STATES JAYCEES (1984), which required the Jaycees to include women as full members, was correctly decided. For, unlike the above cases, in ROBERTS the Supreme Court refused to view the regulation of freedom of association as simply an individual or group First Amendment issue, but rather viewed it as equal protection and First Amendment issues.
Fleming writes, “We should treat ROBERTS as an archetype of how the Court might frame clashes between freedom of association and equal protection, and how it might secure the core or central range of application of both freedoms, rather than privileging the former to the exclusion of the latter.” While Fleming seeks to make arguments [*619] on the basis of how the Supreme Court should apply basic polity and rights principles in order to secure deliberative autonomy and deliberative democracy, when one looks more deeply into his analysis of cases, one finds that the decision points, or the bases for his conclusions about how to decide such cases, seem to be more at the level of what I would call a basic constitutive social construction process, in which analogies from past practices and cases play an important role in making constitutional choices. For example, Fleming seems to argue that ROBERTS was rightly decided, not simply because it was based on equal protection and First Amendment principles, but also because of the social facts in the case, that the Jaycees “had failed to demonstrate that the Act imposes any burdens on the male members’ freedom of expressive association” because the Jaycees “already had admitted women as junior members and invited them to participate in their training and community activities” (p.190). This example raises questions for me, not about the need for the Court to look at both First Amendment and equal protection values in such cases. Rather, it raises questions as to whether the choices are made at the level of principle or at the level of past practice, or rather at the level of the application of social facts to these principles, through a process of analogy. If the Jaycees had not allowed women in at all, would that have tilted the decision for associational expression?
Moreover, the BOY SCOUTS case is criticized for not recognizing that the New Jersey legislature and its Supreme Court “implicitly had adopted the view that the state has a compelling interest in eliminating discrimination on the basis of sexual orientation in public accommodations” (p.192). Fleming writes, “Even if the Court were not ready to go all the way with ROBERTS and hold that a compelling government interest was present in BOY SCOUTS, it should have taken a few steps in that direction, given its decisions in ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003),”cases which “manifested some concern for government’s securing the status of gays and lesbians as free and equal citizens” (p.192). The core of this argument is not simply a theory of democratic autonomy and deliberation, but also the importance of precedent and prior behavior in deciding cases. Fleming considers additional points in comparing the relationship of the Jaycees to women and the Boy Scouts to homosexuals. Therefore, we see in Fleming’s preferred method for deciding these cases the acceptance of the fact that the social construction process leaves much room for courts to decide cases for or against a minority, whether they use First Amendment and/or equal protection principles. Moreover, Fleming admits the choice by courts is wide and accepts the legitimacy of courts coming up with decisions different from what he would like.
Therefore, all that Fleming seems to require of jurists is that, at a theoretical level, they take both sets of rights or multiple sets of rights principles seriously. It is up to courts to make decisions, and they may have a different view from Fleming’s. This suggests that we need a deeper theory of application of the core principles in Fleming’s theory, to ensure that both sets of values are applied in ways that secure basic [*620] rights, rather than just the view that courts consider such rights principles in their decision making.
BOWERS is an easy case to criticize, because it did not really engage in a decision-making process that took seriously prior privacy cases. JAYCEES, BOY SCOUTS, and R.A.V. are harder cases, for, although members of the Supreme Court did consider both equal protection and First Amendment rights and thus did meet Fleming’s concerns against making choices only on First Amendment absolutism, it chose to respect equal protection principles only in the JAYCEES case. Fleming does not offer clear arguments as to why the BOY SCOUTS and R. A. V. cases violate rights basic to deliberative autonomy or deliberative democracy. Most importantly, the relationship between autonomy and democracy in these cases is not linked to the wider theory of constitutional constructivism that is presented in the first seven chapters. Fleming calls for the Court to consider both First Amendment and equal protection principles in such cases but does not explain why the failure to consider both undercuts his theory of constitutional constructivism.
Chapter 9 moves further from Fleming’s constitutional theory. It is a justification for why it is permissible to move away from the Constitution in periods of war and crisis, as a means to preserve the constitutional order for a later day. Drawing upon familiar themes invoked by Abraham Lincoln to justify putting the Constitution aside (as he did at the start of the Civil War), and James Madison to argue why it was permissible to use a ratifying process for the Constitution (which was unconstitutional in terms of the Articles of Confederation), Fleming argues that BUSH v. GORE (2000), which settled the 2000 Presidential Election, and the incarceration of “persons that planned or aided terrorist acts” “as the President determines,” were justifiable. Fleming argues that in war and crisis, there is an affirmative obligation to secure the preconditions for constitutional democracy, as long as the President and nation restore the Constitution when the nation is no longer in war or crisis. Because the Constitution is only an imperfect “means to the ends of our constitutional democracy” (p.197), its principles may properly be violated in extraordinary circumstances in order to preserve the Republic and further those ends. The problem with the chapter is that only the bare outline of this argument is made and alternative views are not seriously considered. An additional shortcoming of this chapter is that in no way is it related to the more general constitutional theory presented in the book, and the author admits this. Fleming writes, “Unlike previous chapters, I do not elaborate or apply constitutional constructivism’s guiding framework to secure basic liberties associated with constitutional democracy. Rather . . . I reflect on whether there are circumstances in which, to preserve or restore the conditions of constitutional democracy itself, it may be justifiable to violate the Constitution” (pp.195-196). There is not even a discussion of the range of preconditions that would warrant the waiving of the basic liberties which Fleming claims are so important to him. The only transformative, aspirational element in this chapter is the notion that conservatives no longer, without being hypocrites, can view the Constitution as [*621] containing only negative rights against government, since in BUSH v. GORE (2000) they have argued for a positive right of protecting the welfare of the nation from crisis. Fleming considers whether a reconsideration of DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICE (1989) and the presence of positive rights, such as the right to welfare for citizens, lies in the future. I think not. One would at least have to provide a full definition of constitutional principles and their construction through time to make the arguments that Fleming seeks to make in Chapter 9. No such arguments are offered.
In Chapter 10, Fleming returns to make an argument for his happy-ending Constitution-perfecting theory. He argues against Levinson’s critique of happy ending theories, Ackerman’s dualist theory where justification is from “We the People” in action and not foundational principles, and in favor of Sager’s view that constitutional justice is to be viewed as a subset of all political justice. However, unlike Levinson, Ackerman, and Sager, Fleming refuses to center on the imperfections of the Constitution, which he admits do exist. Rather, he writes, “We should aspire to interpret the Constitution so as to make it the best it can be” (p.211). Realizing that unlike the German Constitution, in our Constitution basic rights are not entrenched; that is, they may be changed by Article V amendments. The goal for Fleming is to resist constitutional tragedies and imperfections, which include Court decisions that lead to “the imperfect provision for affirmative liberties,” “the failure of the constitutional order (for example, the failure to generate the civic virtue necessary for citizens to affirm basic liberties which might lead to the breakdown of the wall of separation between church and state or more generally to a culture war that imperils basic liberties),” “a decision in constitutional law that has horrible consequences for the lives of particular citizens or groups,” a decision that has disastrous consequences for interpretive method and for the development of doctrine,” and a decision which reduces our political system from a fair scheme of equal participation to a veritable marketplace if ideas” (pp.220-221).
For Fleming, there are three senses in which a constitutional tragedy may exist. One sense, is “If the “Constitution were to allow or require terrible evil of grave injustice, and if fidelity to the Constitution were to mandate complicity in such evil and injustice” (p.221). Fleming views the original Constitution’s protection of slavery as the best example of this first sense. A second sense of the tragic is “If the Constitution were wrongly interpreted to sanction a terrible evil of grave injustice, when in fact the Constitution, rightly interpreted, allows or requires a good outcome or happy ending” (p.221). Fleming views PLESSY v. FERGUSON (1896) and BOWERS v. HARDWICK (1986) as such cases. A third sense of the tragic are cases which present “tragic issues” or necessitate “tragic choices,” when the Court must “reconcile two rights in order to prevent either from destroying the other,” as found in the flag salute cases (p.221). Fleming concludes the book by arguing that WASHINGTON v. GLUCKSBERG (1997), which did not protect the right to die, including the right of terminally ill [*622] persons to physician-assisted suicide, is a tragic case in all three senses. At the core of this tragedy is what I believe is at the core of Fleming’s theory: the right to individual autonomy over self from the state, thus allowing the individual “to live autonomously rather than as a mere creature of the state or God,” a right of “self-authorship,” and the right of citizens to be “the authors of their own tragedies” (p.224).
Thus, the object of this nuanced constitutional theory is to provide the best account of the Constitution to produce happy endings, defined as fostering democratic autonomy, and its close, but secondary, relative, democratic deliberation.
Finally, this is one of the very best theories I have seen which seeks to make sense of the relationship between core rights and polity principles in our liberal-republican Constitution and does so by looking at hard cases. However, this constitutional theory needs more precise linkages to the process of Supreme Court decision-making, through time and in additional doctrinal areas to sustain its soundness and authority.
Kahn, Ronald, and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.
Kahn, Ronald. 2005. “Why Lawrence v. Texas (2003) Was Not Expected: A Critique of Pragmatic Legalist and Behavioral Explanations of Supreme Court Decision Making.” In H.N. Hirsch (ed), THE FUTURE OF GAY RIGHTS IN AMERICA. New York: Routledge: 229-264.
Kahn, Ronald. 1994. THE SUPREME COURT AND CONSTITUTIONAL THEORY, 1953-1993. Lawrence, KS: University Press of Kansas.
Sunstein, Cass. 1996. LEGAL REASONING AND POLITICAL CONFLICT. New York: Oxford University Press.
Sunstein, Cass. 1993. THE PARTIAL CONSTITUTION. Cambridge, MA: Harvard University Press.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).
BUCKLEY v. VALEO, 424 U.S. 1 (1976).
BUSH v. GORE, 531 U.S. 98 (2000).
DESHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICE, 489 U.S. 189 (1989).
FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 U.S. 765 (1978).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
MICHAEL H. v. GERALD D., 491 U.S. 110 (1989). [*623]
PALKO v. CONNECTICUT, 302 U.S. 319 (1937).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).
ROBERTS v. UNITED STATES JAYCEES, 468 U.S. 609 (1984).
ROE v. WADE, 410 U.S. 113 (1973).
ROMER v. EVANS, 517 U.S. 620 (1996).
US v. CAROLENE PRODUCTS, 304 U.S. 144 (1938).
WASHINGTON v. GLUCKSBERG, 521 U.S. 702 (1997).
© Copyright 2008 by the author, Ronald Kahn.