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.

James E. Fleming argues that fidelity in interpreting the US Constitution as written requires a moral reading or philosophic approach, and that fidelity commits to honouring aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders.

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination. The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.

1865. The Civil War is over, and the South lies in ruins. But for some people, former slaveholders have not been punished enough. A cabal of powerful men, led by Charles A. Dana, the assistant secretary of war, plot to break the spirit of the South once and for all - by convicting General Robert E. Lee of treason and hanging him like a common criminal. To this end, they have convened a secret military tribunal in Lee's former home in Arlington, Virginia. Jeremiah O'Brien of the New-York Tribune, a long-time protégé of Dana's, is the only reporter allowed to attend the trial. His exclusive reports on this momentous event, and the book he intends to write, will surely make his fortune. Yet as the trial proceeds, pitting the general against his accusers, O'Brien finds himself torn between his loyalty to Dana, his love for a Confederate spy, and his growing respect and compassion for Lee himself. The young reporter is supposed to be only an observer, but, in the end, it is O'Brien who must evaluate the evidence and determine the true meaning of honor. Written by New York Times bestselling author and historian Thomas Fleming, The Secret Trial of Robert E. Lee brings to life a fascinating chapter in American history that might well have happened - and perhaps truly did.