User:JRobble/sandbox
Scholarship[edit]
Individual rights[edit]
With his wife, Linda McClain, Fleming outlines a defense of traditional liberal rights[1] in Ordered Liberty: Rights, Responsibilities, and Virtues, and attempts to find a middle ground between liberal, civic republican, communitarian, and progressive viewpoints.[2] They posit that individual rights not only protect individuals, but also provide an opportunity for citizens to autonomously exercise the responsibility to determine how to be a good citizen.[3] Fleming and McClain argue this "responsibility as autonomy" fulfilled when government does not steer citizens toward a particular choice differs from "responsibility as accountability" to the larger society put forth by communitarians. They assert that government can inform citizens about each option, allow individuals to contemplate the best option, and support whichever option each individual chooses. Critics have pointed out that this may be more difficult in practice, as different people will interpret different motives behind the same piece of government-provided information.[4]: 400–01 Also, when government intervention is needed to create an environment that allows for individual choice, then the government will have to restrict some citizens' autonomy in favor of others'.[2]: 403–04 Although Fleming and McClain's argument assumes individuals will choose to act in the best interests of society most of the time, they do not advocate for absolute rights, acknowledging rights should be limited when confronted with a stronger competing interest.[3] Fleming and McClain analyze a series of abortion cases decided by the Supreme Court of the United States, and find the Court rarely applied a formal strict scrutiny, intermediate scrutiny, or rational basis test, but was more often balancing individual rights and society's interests.[5] When reasonable people can differ whether an action such as abortion should be allowed, Fleming and McClain assert that it should be left to individual choice.[3] They take this a step further, arguing that if the inability to choose negatively impacts an individual in a personal way, denying that choice creates a moral harm.[6]
Although Fleming and McClain claimed to be advocating political liberalism, critics felt examples in Ordered Liberty extended beyond the traditional notion of citizenship and reached into the more private sphere associated with comprehensive liberalism.[7] Some believed the family law and equality case examples chosen for the book furthered the autonomy as self-government argument in ways that are harder to argue when examining other individual rights scenarios, such as free speech or criminal procedure cases.[8] Others pointed out that in a post Citizens United world, where corporations and organizations wield free speech and religious freedom rights, an examination of individual rights and autonomy of individual human beings seemed out of step.[1] : 398
Role of judiciary[edit]
Fleming, in his book Securing Constitutional Democracy: The Case of Autonomy, supports the idea of the Supreme Court of the United States as the protector of fundamental rights.[9]
Originalism[edit]
With Sotirios Barber, Fleming attacks originalism in Constitutional Interpretation: The Basic Questions.[9]: 323
Political debate[edit]
Fleming and McClain have noted that when citizens are debating as part of a "deliberative democracy,"[10] their aim should be creation of a common good, not imposing their view of the good on others.[11]
References[edit]
- ^ a b West, Robin (2013). "Liberal Responsibilities". Tulsa Law Review. 49 (2): 396. Retrieved 17 June 2021.
- ^ a b Brown, Rebecca L. (2014). "Common Good and Common Ground: The Inevitability of Fundamental Disagreement" (PDF). University of Chicago Law Review. 81 (1): 397. Retrieved 17 June 2021.
- ^ a b c Dorf, Michael C. "Liberalism's Errant Theodicy". Balkinization. Retrieved 17 June 2021.
- ^ Massaro, Toni M. (2012). "Some Realism About Constitutional Liberalism". Constitutional Commentary. 28. Retrieved 17 June 2021. (Reviewing Ordered Liberty: Rights, Responsibilities, and Virtues).
- ^ Yankah, Ekow (2013-10-21). "Liberalism Revisited". JOTWELL. Retrieved 27 September 2019. (Reviewing James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).
- ^ Melendez-Juarbe, Hiram A. (2008). "Privacy in Puerto Rico and the Madman's Plight: Decisions". Georgetown Journal of Gender and the Law. 9 (1): 18, n.68. Retrieved 13 September 2019.(Citing James E. Fleming and Linda C. McClain, "The Right to Privacy in Sandel's Procedural Republic," in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 249, 254 (eds. Anita L. Allen & Milton C. Regan, Jr. 1998)).
- ^ Greene, Abner S. (2012). "State Speech and Political Liberalism". Constitutional Commentary. 32: 424–25, 428. Retrieved 24 September 2019.
- ^ Kersch, Ken I. (2012). "Bringing It All Back Home?". Constitutional Commentary. 28: 414. Retrieved 21 June 2021.
- ^ a b McCloskey, Robert G.; Levinson, Sanford (2010). The American Supreme Court (5th ed.). University of Chicago Press. p. 322. ISBN 9780226556864.
- ^ Alfieri, Anthony V. (April 1999). "Prosecuting Race". Duke Law Journal. 48 (6): 1246. doi:10.2307/1373016. JSTOR 1373016. Retrieved 22 October 2019. (Citing James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 511 (1997)).
- ^ Greene, Abner S. (2000). "Civil Society and Multiple Repositories of Power". Chicago-Kent Law Review. 75 (2): 488. Retrieved 21 October 2019. (Citing Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 Chi.-Kent L. Rev. 301, 346 (2000)).