In this article, Professor Fleming proposes to tether the right of autonomy by grounding it within a constitutional constructivism, a guidingframeworkfor constitutional theory with two fundamental themes: deliberative democracy and deliberative autonomy. He advances deliberative autonomy as a unifying theme that shows the coherence and structure of certain substantive liberties on a list of familiar "unenumerated" fundamental rights (commonly classed under privacy, autonomy, or substantive due process). The bedrock structure of deliberative autonomy secures basic liberties that are significant preconditions for persons' ability to deliberate about and make certain fundamental decisions affecting their destiny, identity, or way of life. As against critics' charges that the right of privacy or autonomy is dangerously unruly and unconstrained, Professor Fleming argues that deliberative autonomy is rooted, along with deliberative democracy, in the language and design of our Constitution. Each theme, he contends, has a structural role to play in securing the basic liberties that are preconditions for our scheme of deliberative self-governance. Finally, Professor Fleming argues for reconceiving the substantive due process inquiry in terms of a criterion of the significance of an asserted liberty for deliberative autonomy, charting a middle course between Scaliathe rock of liberty as "hidebound" historical practices-and Charybdis-the whirlpool of liberty as unbounded license.
James E. Fleming,
Securing Deliberative Autonomy
Stanford Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2777