The natural rights-based justification for judicial review

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 2119-2130

  Fleming, James E ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035615285     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (92)

1. Michael S. Moore, Justifying the Natural Law Theory of Constitutional Interpretation, 69 Fordham L. Rev. 2087 (2001).
2. Moore is arguably the leading proponent of a moral realist or natural law theory of constitutional interpretation among law professors. Sotirios A. Barber is arguably the leading proponent of a theory similar to Moore's view among political science professors. See, e.g., Sotirios A. Barber, The Constitution of Judicial Power (1993); Sotirios A. Barber, On What the Constitution Means (1984). Robert P. George has developed a moral realist or natural law theory that is radically different from Moore's and Barber's views both in its content and in its implications for a theory of judicial review. See, e.g., Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. (forthcoming May 2001). In a forthcoming article, I criticize George's view. See James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation, 69 Fordham L. Rev. (May 2001). I should acknowledge and address an evident tension between my critique of Moore's view here and my critique of George's view there. Here, I criticize Moore for placing too much emphasis upon judicial enforcement of natural rights to the exclusion of protection of natural rights outside the courts by legislatures, executives, and citizens generally. There, I criticize George for rejecting judicial enforcement of natural rights and leaving the protection of natural rights to legislatures, executives, and citizens generally. I would reconcile my evidently conflicting positions in the two papers by claiming that we need protection of natural rights both in the courts (contra George) and outside the courts (contra Moore). Put another way, my view lies between those of Moore and George: we need more emphasis on protection of natural rights outside the courts than Moore countenances, and more emphasis on protection of natural rights by courts than George contemplates.
3. Moore is arguably the leading proponent of a moral realist or natural law theory of constitutional interpretation among law professors. Sotirios A. Barber is arguably the leading proponent of a theory similar to Moore's view among political science professors. See, e.g., Sotirios A. Barber, The Constitution of Judicial Power (1993); Sotirios A. Barber, On What the Constitution Means (1984). Robert P. George has developed a moral realist or natural law theory that is radically different from Moore's and Barber's views both in its content and in its implications for a theory of judicial review. See, e.g., Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. (forthcoming May 2001). In a forthcoming article, I criticize George's view. See James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation, 69 Fordham L. Rev. (May 2001). I should acknowledge and address an evident tension between my critique of Moore's view here and my critique of George's view there. Here, I criticize Moore for placing too much emphasis upon judicial enforcement of natural rights to the exclusion of protection of natural rights outside the courts by legislatures, executives, and citizens generally. There, I criticize George for rejecting judicial enforcement of natural rights and leaving the protection of natural rights to legislatures, executives, and citizens generally. I would reconcile my evidently conflicting positions in the two papers by claiming that we need protection of natural rights both in the courts (contra George) and outside the courts (contra Moore). Put another way, my view lies between those of Moore and George: we need more emphasis on protection of natural rights outside the courts than Moore countenances, and more emphasis on protection of natural rights by courts than George contemplates.
4. Moore is arguably the leading proponent of a moral realist or natural law theory of constitutional interpretation among law professors. Sotirios A. Barber is arguably the leading proponent of a theory similar to Moore's view among political science professors. See, e.g., Sotirios A. Barber, The Constitution of Judicial Power (1993); Sotirios A. Barber, On What the Constitution Means (1984). Robert P. George has developed a moral realist or natural law theory that is radically different from Moore's and Barber's views both in its content and in its implications for a theory of judicial review. See, e.g., Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. (forthcoming May 2001). In a forthcoming article, I criticize George's view. See James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation, 69 Fordham L. Rev. (May 2001). I should acknowledge and address an evident tension between my critique of Moore's view here and my critique of George's view there. Here, I criticize Moore for placing too much emphasis upon judicial enforcement of natural rights to the exclusion of protection of natural rights outside the courts by legislatures, executives, and citizens generally. There, I criticize George for rejecting judicial enforcement of natural rights and leaving the protection of natural rights to legislatures, executives, and citizens generally. I would reconcile my evidently conflicting positions in the two papers by claiming that we need protection of natural rights both in the courts (contra George) and outside the courts (contra Moore). Put another way, my view lies between those of Moore and George: we need more emphasis on protection of natural rights outside the courts than Moore countenances, and more emphasis on protection of natural rights by courts than George contemplates.
5. Moore is arguably the leading proponent of a moral realist or natural law theory of constitutional interpretation among law professors. Sotirios A. Barber is arguably the leading proponent of a theory similar to Moore's view among political science professors. See, e.g., Sotirios A. Barber, The Constitution of Judicial Power (1993); Sotirios A. Barber, On What the Constitution Means (1984). Robert P. George has developed a moral realist or natural law theory that is radically different from Moore's and Barber's views both in its content and in its implications for a theory of judicial review. See, e.g., Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. (forthcoming May 2001). In a forthcoming article, I criticize George's view. See James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation, 69 Fordham L. Rev. (May 2001). I should acknowledge and address an evident tension between my critique of Moore's view here and my critique of George's view there. Here, I criticize Moore for placing too much emphasis upon judicial enforcement of natural rights to the exclusion of protection of natural rights outside the courts by legislatures, executives, and citizens generally. There, I criticize George for rejecting judicial enforcement of natural rights and leaving the protection of natural rights to legislatures, executives, and citizens generally. I would reconcile my evidently conflicting positions in the two papers by claiming that we need protection of natural rights both in the courts (contra George) and outside the courts (contra Moore). Put another way, my view lies between those of Moore and George: we need more emphasis on protection of natural rights outside the courts than Moore countenances, and more emphasis on protection of natural rights by courts than George contemplates.
6. Moore, supra note 1, at 2089.
7. In the 1980s, I wrote a Ph.D. doctoral dissertation developing a constitutional constructivism as a third way between legal positivist and natural law theories of constitutional interpretation. See James E. Fleming, Constitutional Constructivism (1988) (unpublished Ph.D. dissertation, Princeton University) (on file with author) [hereinafter Fleming, Constitutional Constructivism].
8. John Rawls, The Independence of Moral Theory, in John Rawls: Collected Papers 286, 286-87 (Samuel Freeman ed., 1999).
9. See John Rawls, Political Liberalism 90-99 (1993) [hereinafter Rawls, Political Liberalism] (distinguishing his project of political constructivism from that of theories of moral realism or natural law); John Rawls, A Theory of Justice 263 (1971) (characterizing his theory as attempting to find an "Archimedean point" outside existing circumstances that does not "appeal to a priori or perfectionist principles").
10. See John Rawls, Political Liberalism 90-99 (1993) [hereinafter Rawls, Political Liberalism] (distinguishing his project of political constructivism from that of theories of moral realism or natural law); John Rawls, A Theory of Justice 263 (1971) (characterizing his theory as attempting to find an "Archimedean point" outside existing circumstances that does not "appeal to a priori or perfectionist principles").
11. See James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 217 (1993) [hereinafter Fleming, Constructing the Substantive Constitution]; Fleming, Constitutional Constructivism, supra note 4.
12. See James E. Fleming, Constructing the Substantive Constitution, 72 Tex. L. Rev. 211, 217 (1993) [hereinafter Fleming, Constructing the Substantive Constitution]; Fleming, Constitutional Constructivism, supra note 4.
13. Moore, supra note 1, at 2099.
14. Id.
15. Id. at 2102.
16. Id. at 2100.
17. Id. at 2100-01.
18. Id. at 2101
19. Mark Tushnet, Taking the Constitution Away from the Courts (1999).
20. See id, at 129-53.
21. Id. at 165-72.
22. James E. Fleming, The Constitution Outside the Courts, 86 Cornell L. Rev. 215, 218 (2000) [hereinafter Fleming The Constitution Outside the Courts] (reviewing Tushnet, supra note 14) (footnote omitted).
23. Moore, supra note 1, at 2103 (referring to Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 Ox. J. Legal Stud. 18 (1993)) .
24. Moore, supra note 1, at 2103 (referring to Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 Ox. J. Legal Stud. 18 (1993)) .
25. Id.
26. Id. at 2101.
27. Id. at 2102.
28. Id. at 2103.
29. Id.
30. Id. at 2101.
31. Id. at 2102.
32. Id.
33. Id.
34. Id. at 2104.
35. See John Rawls, The Idea of Public Reason Revisited, in John Rawls: Collected Papers, supra note 5, at 573, 579-81; Rawls, Political Liberalism, supra note 6, at 4-5, 240, 299.
36. See John Rawls, The Idea of Public Reason Revisited, in John Rawls: Collected Papers, supra note 5, at 573, 579-81; Rawls, Political Liberalism, supra note 6, at 4-5, 240, 299.
37. See, e.g., Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988).
38. See, e.g., Cass R. Sunstein, The Partial Constitution (1993).
39. See Fleming, Constructing the Substantive Constitution, supra note 7, at 252-55, 292-96.
40. Moore, supra note 1, at 2115-17.
41. See, e.g., Sunstein, supra note 31, at 9-10; Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978) [hereinafter Sager, Fair Measure]; Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) [hereinafter Sager, Thinness].
42. See, e.g., Sunstein, supra note 31, at 9-10; Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978) [hereinafter Sager, Fair Measure]; Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) [hereinafter Sager, Thinness].
43. See, e.g., Sunstein, supra note 31, at 9-10; Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978) [hereinafter Sager, Fair Measure]; Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) [hereinafter Sager, Thinness].
44. Fleming, The Constitution Outside the Courts, supra note 17, at 225-28.
45. Id.
46. See Tushnet, supra note 14, at 14-26, 57-65, 95-128.
47. See Fleming, The Constitution Outside the Courts, supra note 17, at 217, 246-49.
48. Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585, 585 (1975).
49. Sanford Levinson, Constitutional Faith (1988).
50. Lawrence G. Sager, Thin Constitutions and the Good Society, 69 Fordham L. Rev. 1989 (2001); Sager, Fair Measure, supra note 34; Sager, Thinness, supra note 34.
51. Lawrence G. Sager, Thin Constitutions and the Good Society, 69 Fordham L. Rev. 1989 (2001); Sager, Fair Measure, supra note 34; Sager, Thinness, supra note 34.
52. Lawrence G. Sager, Thin Constitutions and the Good Society, 69 Fordham L. Rev. 1989 (2001); Sager, Fair Measure, supra note 34; Sager, Thinness, supra note 34.
53. Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453 (1992); Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
54. Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453 (1992); Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
55. Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975 (1993); Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453 (1992); Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69 Fordham L. Rev. 2007 (2001).
56. See, e.g., Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (1988); Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. Rev. 707 (1985).
57. See, e.g., Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (1988); Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. Rev. 707 (1985).
58. See, e.g., Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (1988); Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996); Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. Rev. 707 (1985).
59. Wayne D. Moore, Constitutional Rights and Powers of the People (1996).
60. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).
61. Jeremy Waldron, The Dignity of Legislation (1999).
62. Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 Fordham L. Rev. 1249, 1251-56 (1997); see also Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996) [hereinafter Dworkin, Freedom's Law].
63. Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 Fordham L. Rev. 1249, 1251-56 (1997); see also Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996) [hereinafter Dworkin, Freedom's Law].
64. Moore, supra note 1, at 2092. In his paper for the conference, Moore does not indicate whether he believes that aspects of moral reality in addition to natural rights (for example, aspirations to a good society besides natural rights) are incorporated in the Constitution and, if so, whether they are judicially enforceable.
65. Dworkin, Freedom's Law, supra note 47, at 34-35.
66. Id. at 10-12.
67. Moore, supra note 1, at 2093-98.
68. See Colloquy, Fidelity as Integrity, 65 Fordham L. Rev. 1357, 1357 (1997) [hereinafter Colloquy, Fidelity as Integrity] (quoting Ronald Dworkin's reply to criticism that he was too "wedded to text," advanced by Robin West, Integrity and Universality: A Comment on Ronald Dworkin's Freedom's Law, 65 Fordham L. Rev. 1313 (1997)).
69. See Colloquy, Fidelity as Integrity, 65 Fordham L. Rev. 1357, 1357 (1997) [hereinafter Colloquy, Fidelity as Integrity] (quoting Ronald Dworkin's reply to criticism that he was too "wedded to text," advanced by Robin West, Integrity and Universality: A Comment on Ronald Dworkin's Freedom's Law, 65 Fordham L. Rev. 1313 (1997)).
70. Colloquy, Fidelity as Integrity, supra note 52, at 1360-63 (quoting Dworkin's reply to criticism that he was "not sufficiently wedded to text," put forward by Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 Fordham L. Rev. 1269 (1997)).
71. Colloquy, Fidelity as Integrity, supra note 52, at 1360-63 (quoting Dworkin's reply to criticism that he was "not sufficiently wedded to text," put forward by Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 Fordham L. Rev. 1269 (1997)).
72. James E. Fleming, Fidelity to Our Imperfect Constitution, 65 Fordham L. Rev. 1335, 1349 (1997) [hereinafter Fleming, Imperfect Constitution] (distinguishing between Dworkin's theory of fidelity as integrity with the moral reading (which in theory is sufficiently constrained by concern for fit with legal materials) and Dworkin's own application of it (for he fails satisfactorily to do the fit work that his own theory calls for), and urging "[d]o as Dworkin says, not as he does").
73. See Sager, Thinness, supra note 34, at 410, 414-19.
74. Id. at 433-35; Sager, Fair Measure, supra note 34, at 1221, 1263-64.
75. Id. at 433-35; Sager, Fair Measure, supra note 34, at 1221, 1263-64.
76. Fleming, Imperfect Constitution, supra note 54, at 1343.
77. Frank I. Michelman, The Essential Constitution, The Storrs Lectures at Yale Law School (Spring 2000) (on file with author) [hereinafter Michelman, The Storrs Lectures]; Frank I. Michelman, Populist Natural Law (Reflections on Tushnet's "Thin Constitution"), 34 U. Rich. L. Rev. 461, 462-64 (2000).
78. Frank I. Michelman, The Essential Constitution, The Storrs Lectures at Yale Law School (Spring 2000) (on file with author) [hereinafter Michelman, The Storrs Lectures]; Frank I. Michelman, Populist Natural Law (Reflections on Tushnet's "Thin Constitution"), 34 U. Rich. L. Rev. 461, 462-64 (2000).
79. Michelman, The Storrs Lectures, supra note 58.
80. On this point, I have benefited from conversations with Frank Michelman and Larry Sager.
81. I believe that the term "happy endings" comes from Sandy Levinson. See Colloquy, Fidelity as Integrity, supra note 52, at 1358 (question from Professor Levinson). For application of the term, see Dworkin, Freedom's Law, supra note 47, at 38; James E. Fleming, Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?, in Constitutional Stupidities, Constitutional Tragedies 162, 163, 166-67 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) [hereinafter Fleming, Constitutional Tragedy]. In this section, I draw upon my analysis in the work just cited.
82. I believe that the term "happy endings" comes from Sandy Levinson. See Colloquy, Fidelity as Integrity, supra note 52, at 1358 (question from Professor Levinson). For application of the term, see Dworkin, Freedom's Law, supra note 47, at 38; James E. Fleming, Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?, in Constitutional Stupidities, Constitutional Tragedies 162, 163, 166-67 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) [hereinafter Fleming, Constitutional Tragedy]. In this section, I draw upon my analysis in the work just cited.
83. I believe that the term "happy endings" comes from Sandy Levinson. See Colloquy, Fidelity as Integrity, supra note 52, at 1358 (question from Professor Levinson). For application of the term, see Dworkin, Freedom's Law, supra note 47, at 38; James E. Fleming, Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?, in Constitutional Stupidities, Constitutional Tragedies 162, 163, 166-67 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998) [hereinafter Fleming, Constitutional Tragedy]. In this section, I draw upon my analysis in the work just cited.
84. See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 353-60 (1981).
85. See Fleming, Constitutional Tragedy, supra note 61, at 167.
86. See Christopher L. Eisgruber, Justice and the Text: Rethinking the Constitutional Relation Between Principle and Prudence, 43 Duke L.J. 1, 7 (1993).
87. See Fleming, Constitutional Tragedy, supra note 61, at 162.
88. See Ronald Dworkin, Law's Empire 365-68 (1986); Ronald Dworkin, A Matter of Principle 146-66 (1985).
89. See Ronald Dworkin, Law's Empire 365-68 (1986); Ronald Dworkin, A Matter of Principle 146-66 (1985).
90. For the idea of a "Constitution-perfecting" theory, as distinguished from a "process-perfecting" theory, see Fleming, Constructing the Substantive Constitution, supra note 7, at 214-15. I mean "perfecting" in the sense of interpreting the Constitution with integrity so as to render it a coherent whole, not in Monaghan's caricatured sense of "Our Perfect Constitution" as creating a perfect liberal utopia or an "ideal object" of political morality. See Monaghan, supra note 62, at 354-60.
91. For the idea of a "Constitution-perfecting" theory, as distinguished from a "process-perfecting" theory, see Fleming, Constructing the Substantive Constitution, supra note 7, at 214-15. I mean "perfecting" in the sense of interpreting the Constitution with integrity so as to render it a coherent whole, not in Monaghan's caricatured sense of "Our Perfect Constitution" as creating a perfect liberal utopia or an "ideal object" of political morality. See Monaghan, supra note 62, at 354-60.
92. See Eisgruber, supra note 64, at 13.