Dartmouth Events

“The Myth of Strict Scrutiny for Fundamental Rights,” BU Law Prof. James Fleming

The Roger S. Aaron '64 Lecture, by James E. Fleming, Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law, Boston University School of Law

Thursday, October 31, 2013
Room 003, Rockefeller Center
Intended Audience(s): Public
Categories: Lectures & Seminars

In constitutional law, it is commonplace to say that the Supreme Court applies “strict scrutiny” in protecting fundamental rights under the Due Process Clause – almost automatically invalidating any statute restricting such rights. Professor Fleming will debunk this view as a myth propounded by Justice Scalia, an opponent of stringent protection for rights of privacy or autonomy, to make it harder to justify protecting such rights. Supporters of these rights have fallen for this myth and helped perpetuate it. Through careful examination of the cases protecting privacy and autonomy, Fleming will show that the Court has applied a more defensible framework: “reasoned judgment” in protecting “ordered liberty.”

James E. Fleming is Professor of Law, The Honorable Frank R. Kenison Distinguished Scholar in Law, and Associate Dean for Research and Intellectual Life at Boston University School of Law. He is author or co-author of Securing Constitutional Democracy: The Case of Autonomy (University of Chicago Press, 2006); Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007) (with Sotirios A. Barber), and American Constitutional Interpretation (4th ed., Foundation Press, 2008) (with the late Walter F. Murphy, Barber, and Stephen Macedo). He has just published a new book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013), with his wife, Linda C. McClain (who is Professor of Law and Paul M. Siskind Research Scholar at Boston University School of Law). He is working on a book on constitutional interpretation, Fidelity to Our Imperfect Constitution (under contract with Oxford University Press). Finally, he is outgoing Editor of Nomos, the annual book of the American Society for Political and Legal Philosophy, and incoming Vice President (for Law) of the Society.

Co-sponsored by the Dartmouth Legal Studies Faculty Group and the Dartmouth Lawyers Association

For more information, contact:
Joanne Needham

Events are free and open to the public unless otherwise noted.