Securing Constitutional Democracy: The Case of AutonomyFamously 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. |
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abortion argues arguments aspirational principles basic liberties BORK Bowers Carolene Products chapter citizens conception concerning concurring consti Constitution-perfecting theory constitutional constructivism constitutional democracy constitutional document constitutional interpretation constitutional law constitutional order constitutional theory critique decisions deliberative autonomy deliberative democracy democratic dissenting Due Process Clause due process inquiry Ely’s Ely's theory equal citizenship fits and justifies free and equal freedom of association freedom of expression fundamental rights Griswold guiding framework Harlan's hereinafter historical practices homosexual interpretivism John Hart Ely John Rawls joint opinion judgment judicial minimalism judicial review Justice Lawrence liberty of conscience Lochner Michelman moral Ninth Amendment persons political liberalism preconditions for deliberative privacy or autonomy process-perfecting theory Rawls's Rehnquist representative democracy republican right to privacy Ronald Dworkin Sandel Scalia scheme securing the preconditions self-government substantive due process substantive liberties substantive political theory Sunstein Sunstein's theory supra note Supreme Court tion tional tradition tutional unenumerated