James E. Fleming

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 Substantive Due Process (University of Chicago Press, 2022), is Fleming’s latest book. 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. The book 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. One reviewer wrote: “This book offers a marvelously spirited, sophisticated, and multi-faceted defense of the modern tradition of substantive due process. Liberals and progressives will especially welcome the book’s concluding strategies for promoting constitutional liberty under a conservative Supreme Court.” Another review said: “Fleming convincingly demonstrates that the rights protected by the modern due process decisions are critical to the equal citizenship of women and LGBTQ individuals.” See the symposium on this book on the balkinization: http://balkin.blogspot.com/2022/11/balkinization-symposium-on-james-e.html
• 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 provides “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. Every serious student of constitutional theory needs to confront Fleming’s distinctive and original vision.“

Professor Fleming is the co-author of two constitutional law 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 co-author of the fifth edition of Tort and Accident Law: Cases and Materials (West Academic, forthcoming 2023) (with the late Robert E. Keeton and Lewis D. Sargentich of Harvard Law School, Gregory C. Keating of University of Southern California Law School, and Leonard J. Feldman of Seattle University School of Law).

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:

• Getting to the Rule of Law (New York University Press, 2011)
• Evolution and Morality (New York University Press, 2012) (with Sanford Levinson of University of Texas)
• Passions and Emotions (New York University Press, 2013)
• Federalism and Subsidiarity (New York University Press, 2014) (with Jacob Levy of McGill University)

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. summa cum laude 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 Edmond J. 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 or co-organized a number of conferences in constitutional theory and legal and political philosophy, including 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; On Constitutional Obligation and Disobedience; America’s Political Dysfunction: Constitutional Connections, Causes, and Cures; and A Symposium on Ronald Dworkin’s Religion without God. 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. 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. Fleming 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.