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Securing Constitutional Democracy

The Case of Autonomy

Famously described by Louis Brandeis as "the most comprehensive of rights" and ’the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law?

In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.


“In Securing Constitutional Democracy, James Fleming offers an unabashed and meticulous defense of a substantive view of judicially enforced constitutional rights at a time when the fashion in most of the legal academy is to emphasize both proceduralism and a minimal role for the courts. Fleming argues that popular approaches to constitutional analysis fall short of what he calls a ‘Constitution-perfecting theory,’ which would concern itself not only with the quality of democratic self-government but also with protecting individual autonomy. Fleming wants to supplement ‘deliberative democracy’ with an equally important ‘deliberative autonomy,’ the purpose of which is to ‘enable citizens to apply their capacity for a conception of the good in deliberating about and deciding how to live their own lives.’”--Sanford Levinson, W. St. John Garwood and W. St. John Garwood Centennial Chair, University of Texas School of Law

Sanford Levinson

“In this timely and engaging book, James Fleming shows why democracy and judicial recognition of a right to individual autonomy are not antagonistic, as constitutional scholars have long fretted, but necessary complements to one another. Those who would reduce the American Constitution to a set of procedural ground rules for conducting elections, or to a collection of narrow historical compromises, lose sight of the very purpose of constitutionalism. Democracy’s point, Fleming powerfully reminds us, is to facilitate self-government, both in the sense of the polity as a whole, making decisions for the collective good, and in the sense of the individual self, making the most central decisions about how to live his or her own life.”--Michael C. Dorf, Michael I. Sovern Professor of Law, Columbia University School of Law

Michael C. Dorf

Securing Constitutional Democracy is a superbly well-organized, mercifully concise, and reliably thoughtful work of legal and political philosophy. Its central thesis and contribution is its attempted ‘synthesis of modern republicanism and liberalism’ in a constitutional context. Fleming argues that our modern constitutional culture and jurisprudence are best elucidated and defended as promoting two different aspects of self-government: political and personal. This is a deeply clarifying and lucid analysis.”--Jamin Raskin, professor, American University Washington College of Law

Jamin Raskin

Securing Constitutional Democracy is a deep and important book that engages the most fundamental issues in constitutional theory from a fresh and refreshing perspective. Fleming’s book is simply the best elaboration of the implications of political theory in the tradition of John Rawls for the crucial issues in contemporary debates about the fundamental rights. In an era when many constitutional theorists have retreated to minimalism or formalism, it provides a sophisticated and persuasive defense of the Warren Court legacy and insists that the fundamental task of constitutional interpretation is to perfect the Constitution. Every serious student of constitutional theory needs to confront Fleming’s distinctive and original vision.”--Lawrence Solum, John E. Cribbet Professor of Law, University of Illinois College of Law

Lawrence Solum

"[Fleming] has entered the debate with a rigorous and brilliant defense of a constitutional right to personal autonomy, taking on some big guns in constitutional theory, notably Ronald Dworkin, John Hart Ely, Cass Sunstein, and Robert Bork. . . . A first-rate analysis of the principle of the unenumerated right to privacy, essential for law collections."


"A thought-provoking alternative to current mainstream constitutional theories and justifications for judicial reviews."

Harvard Law Review

"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 constitutional theorists. . . . 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."

Ronald Kahn | Law & Politics Book Review

Table of Contents

1. Securing Constitutional Democracy
Part I. Constructing the Substantive Constitution2. Beyond Process-Perfecting Theories of Reinforcing Representative Democracy
3. Beyond Process-Perfecting Theories of Securing Deliberative Democracy
4. An Outline for a Constitution-Perfecting Theory of Securing Constitutional Democracy
Part II. Securing Deliberative Autonomy Together with Deliberative Democracy
5. Securing Deliberative Autonomy
6. Reconceiving the Due Process Inquiry in Terms of Significance for Deliberative Autonomy: Between Scalia and Charybdis
7. Constitutional Interpretation in Circumstances of Moral Disagreement and Political Conflict
Part III. Adjusting, Preserving, and Perfecting the Scheme of Constitutional Democracy
8. Securing the Family of Basic Liberties as a Whole
9. Securing Constitutional Democracy in War and Crisis
10. Constitutional Imperfections and the Pursuit of Happy Endings: Perfecting Our Imperfect Constitution

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