Constructing basic liberties : a defense of substantive due process / James E. Fleming.

Format:

Book

Author/Creator:

Fleming, James E., author.

Language:

English

Subjects (All):

United States. Supreme Court.

United States.

Due process of law--United States.

Due process of law.

Civil rights--United States.

Civil rights.

Liberty.

Law and ethics.

Physical Description:

1 online resource (288 p.) : 1 line drawings

Place of Publication:

Chicago, Illinois : University of Chicago Press, [2022]

Language Note:

In English.

Summary:

A strong and lively defense of substantive due process. From reproductive rights to marriage for same-sex couples, many of our basic liberties owe their protection to landmark Supreme Court decisions that have hinged on the doctrine of substantive due process. This doctrine is controversial—a battleground for opposing views around the relationship between law and morality in circumstances of moral pluralism—and is deeply vulnerable today. Against recurring charges that the practice of substantive due process is dangerously indeterminate and irredeemably undemocratic, Constructing Basic Liberties reveals the underlying coherence and structure of substantive due process and defends it as integral to our constitutional democracy. Reviewing the development of the doctrine over the last half-century, James E. Fleming rebuts popular arguments against substantive due process and shows that the Supreme Court has constructed basic liberties through common law constitutional interpretation: reasoning by analogy from one case to the next and making complex normative judgments about what basic liberties are significant for personal self-government. Elaborating key distinctions and tools for interpretation, Fleming makes a powerful case that substantive due process is a worthy practice that is based on the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.

Contents:

Frontmatter

Contents

One. A Second Death of Substantive Due Process?

Part One. Our Practice of Substantive Due Process

Two. The Coherence and Structure of Substantive Due Process

Three. The Rational Continuum of Ordered Liberty

Part Two. Substantive Due Process Does Not “Effectively Decree the End of All Morals Legislation”

Four. Is Substantive Due Process on a Slippery Slope to “the End of All Morals Legislation”?

Five. Is Moral Disapproval Enough to Justify Traditional Morals Legislation?

Part Three. Substantive Due Process Does Not Enact a Utopian Economic or Moral Theory

Six. The Ghost of Lochner v. New York

Seven. Does Substantive Due Process Enact Mill’s On Liberty?

Part Four. Conflicts between Liberty and Equality

Eight. The Grounds for Protecting Basic Liberties: Liberty Together with Equality

Nine. Accommodating Gay and Lesbian Rights and Religious Liberty

Ten. The Future of Substantive Due Process

Acknowledgments

Notes

Index

Notes:

Includes bibliographical references and index.

Description based on print version record.

ISBN:

9780226821412

0226821412

OCLC:

1333083870