James Fleming's excellent book offers a compelling interpretation of the U.S. Constitution as protecting not only the political liberties required for democratic citizenship but also the substantive liberties of the person, commonly referred to as privacy or autonomy rights. Fleming advances his theory both through engagement with the views of other legal scholars and through detailed analysis of the opinions filed in various U.S. Supreme Court cases, most notably several recent ones concerning the rights of homosexuals, with considerable attention also paid to cases concerning abortion or discrimination on grounds of race or sex. Fans of Justice Antonin Scalia will find much in this book with which to disagree.
The aim of Fleming's “constitutional constructivism” is “to give both substance and process their due” (p. 10) by securing the preconditions for both deliberative autonomy and deliberative democracy. The author contrasts his views with those of two scholars, John Hart Ely and Cass Sunstein, who believe that the Constitution protects only those liberties that underpin democratic procedures, and a third, Michael Sandel, who urges judges to go beyond the bare right of autonomy by grounding their decisions in the substantive value of particular practices (such as homosexual intimate unions). Ely and Sunstein, we are told, do not take substantive liberties seriously enough by guaranteeing them only when they can be recast as procedural liberties, but Sandel errs the other way by reading too much substance into the constitution of our morally pluralistic liberal society. Fleming aims to steer a middle course, one that is explicitly aligned with the political constructivism of John Rawls's Political Liberalism (1993). Fleming's two themes of deliberative democracy and deliberative autonomy mirror the two moral powers of citizens in Rawls's theory, namely, the capacity for a sense of justice and the capacity for a conception of the good, respectively.
Working on the premise that the place of procedural liberties in the Constitution is not under threat, Fleming spends most of his time defending the view that substantive liberties also have an important place. What exactly are these substantive liberties? We are given examples, including the right to marry and the right to die (p. 92), but he insists that the substantive liberties are not defined by any closed list; rather, they are defined as the liberties that enable citizens to live lives of deliberative autonomy. And what is deliberative autonomy? That question is not answered with the precision that characterizes most of the book. The right to deliberative autonomy is “underwritten by liberty of conscience and freedom of association” (p. 104), and it will “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). Given that deliberative autonomy is Fleming's central concept, it deserves and needs a more rigorous analytical definition than it receives.
Fleming's argument for his conclusion that the Constitution guarantees the preconditions for deliberative autonomy can be summarized as follows. First, the Constitution embodies “a coherent scheme of general principles,” rather than being “a discrete list of particular rights” (p. 84). Indeed, the Ninth Amendment makes clear that citizens enjoy rights that are not enumerated in the text of the Constitution (p. 32). Second, the 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 (chap. 6). These two premises imply that constitutional interpretation must involve “structural reasoning, not just textual exegesis or historical research” (p. 130). And deliberative autonomy is the “unifying theme” (p. 90) that such interpretation reveals when one attends to the various substantive liberties that are explicitly present in the (amendments to the) Constitution (p. 97).
This positive argument is found predominantly in Chapters 4 through 6, and it is bolstered appreciably by the aforementioned critiques of Ely, Sunstein, and Sandel in Chapters 2, 3, and 7. The result is a powerfully persuasive reading of the Constitution. The final chapters are three curious postscripts that have little to do with one another or with the core argument of Chapters 2 through 7. Chapter 8 may be the least original and incisive, but 9 and 10 are of considerable interest.
Chapter 9 invokes Lincoln and Madison to argue that since 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. Was that what the majority did in Bush v. Gore (2000), Fleming asks, after a lightning-fast argument to the effect that the decision did indeed violate the Constitution. His answer is even more provocative than (the brevity of) that argument: If the “Bush Five” did avert a constitutional crisis, it was only by submitting to blackmail by the Florida Republicans who threatened to cause one (p. 204).
Chapter 10 clearly states but ultimately evades a profound question about the relationship between constitutional interpretation and normative political theory. If the former is truly constrained by an imperfect constitution, then it will not always be able to reach the same answers as the perfect normative theory, which builds from first principles without constraints. Therefore, the argument goes, the proof that you are really engaged in constitutional interpretation rather than political theory should be to present an instance where the constraints of your discipline bind and leave you with normatively imperfect conclusions. But Fleming defies this demand for proof. It does not suffice to say, as he does following Lawrence Sager, that the domain of constitutional justice is only a subset of all political justice: This shows that the Constitution offers an incomplete account of justice, but it does not reveal any imperfection (leaving aside the quasi-theological claim that incompleteness is a form of imperfection). “We should aspire to interpret the Constitution so as to make it the best it can be” (p. 211), Fleming declaims, rather than reveling in its imperfections (p. 225). Such reveling may indeed be unnecessary, unwise, perverse, and perhaps even distasteful, but the challenge remains to answer the question of imperfection quietly and soberly.
