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 recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.

This text uses original essays, cases, and materials to study the very enterprise by which a constitution is interpreted and a constitutional government created. It explores the American polity as both a constitutional and democratic entity. This volume is organized around a set of basic interrogatives: What is the constitution that is to be interpreted? Who are its authoritative interpreters? How should they go about their interpretive tasks? The new edition has been updated to include important new cases decided through June 2018, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and National Institute of Family and Life Advocates v. Becerra. To maintain brevity, the authors have removed a number of cases from the casebook and placed them on the accompanying website.

The presuppositions of constitutional interpretation -- The principal questions of constitutional interpretation -- The principal features of the American constitutional order : the positive constitutionalism of The federalist -- Approaches to constitutional interpretation -- Textualism and consensualism -- Narrow originalism/intentionalism -- Broad originalism -- Structuralism -- Doctrinalism and minimalism -- The philosophic approach -- Pragmatism -- Epilogue: a fusion of approaches to constitutional interpretation.

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.

Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation.

The Fifth Edition embodies the authors' collective wisdom from teaching the text over many years and incorporates numerous substantive and pedagogical changes. New notes introduce the principal cases succinctly and clearly. These notes orient readers to the topics at hand and illuminate related puzzles and controversies. They both assist students in understanding the cases that follow and serve to spur careful analysis and robust classroom discussion. Many new headings and subheadings have also been added. These, too, are intended to facilitate understanding by clearly indicating how various issues fit together within the larger topic. The revision includes over 50 new cases, squibs, and other materials. These updates reflect both developments in traditional fields of tort liability and new phenomena such as the rise of online platforms where products are now sold and commerce is carried on. Some of these new cases show courts grappling with questions of gendered and racialized wrongs in ways that they would not have done even a decade ago. Since the Fourth Edition, many provisions of the Second Restatement (of Torts, Agency, or other fields of law) have been superseded or supplemented by corresponding provisions of the Third Restatement. Moreover, many states have adopted pattern jury instructions that succinctly outline the elements of various claims and defenses. These new materials provide clear guidance regarding the current scope and contours of numerous claims and defenses. There are also important organizational changes and deletions. To name just a few: several chapters have been reorganized to address the rise of classical accident law and to clarify how modern tort law develops from it, to update and expand upon limitations on punitive damages, and to clarify the elements of battery and the defenses to battery. Furthermore, the casebook has been shortened and its materials have been focused on those topics addressed in current first-year torts classes. Lastly, this edition expands the book's treatment of an emerging area of law: public nuisance. While public nuisance originally landed in the United States along with the rest of the English common law, it owes its contemporary prominence in mass tort litigation to the tobacco suits of the 1990's. In the wake of the stunning success of the tobacco litigation, ambitious public nuisance claims have proliferated to encompass contemporary social problems such as the public health scourge of lead paint contamination, greenhouse gases, and opioids. This important legal field is comprehensively addressed in the portion of the casebook discussing mechanisms of recovery for increasingly common situations in which many people are put at risk, and many ultimately hurt, by the same tortious conduct.

Fleming and McClain defend a civic liberalism that takes seriously not just rights but responsibilities and virtues. Issues taken up include same-sex marriage, reproductive freedom, regulation of civil society and the family, education of children, and clashes between First Amendment freedoms of association and religion and antidiscrimination law.

In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to “remap” federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.