The Legal Theory Bookworm recommends Securing Constitutional Democracy: The Case of Autonomy by James E. Fleming. Here is a blurb:
Famously described by Louis Brandeis as "the most comprehensive of rights" and ‘the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law? In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.
And from the back cover:
"In Securing Constitutional Democracy, James Fleming offers an unabashed and meticulous defense of a substantive view of judicially enforced constitutional rights at a time when the fashion in most of the legal academy is to emphasize both proceduralism and a minimal role for the courts. Fleming argues that popular approaches to constitutional analysis fall short of what he calls a `Constitution-perfecting theory,’ which would concern itself not only with the quality of democratic self-government but also with protecting individual autonomy. Fleming wants to supplement `deliberative democracy’ with an equally important `deliberative autonomy,’ the purpose of which is to `enable citizens to apply their capacity for a conception of the good in deliberating about and deciding how to live their own lives.’"–Sanford Levinson, W. St. John Garwood and W. St. John Garwood Centennial Chair, University of Texas School of Law
"In this timely and engaging book, James Fleming shows why democracy and judicial recognition of a right to individual autonomy are not antagonistic, as constitutional scholars have long fretted, but necessary complements to one another. Those who would reduce the American Constitution to a set of procedural ground rules for conducting elections, or to a collection of narrow historical compromises, lose sight of the very purpose of constitutionalism. Democracy’s point, Fleming powerfully reminds us, is to facilitate self-government, both in the sense of the polity as a whole, making decisions for the collective good, and in the sense of the individual self, making the most central decisions about how to live his or her own life."–Michael C. Dorf, Michael I. Sovern Professor of Law, Columbia University School of Law Jamin Raskin
"Securing Constitutional Democracy is a superbly well-organized, mercifully concise, and reliably thoughtful work of legal and political philosophy. Its central thesis and contribution is its attempted `synthesis of modern republicanism and liberalism’ in a constitutional context. Fleming argues that our modern constitutional culture and jurisprudence are best elucidated and defended as promoting two different aspects of self-government: political and personal. This is a deeply clarifying and lucid analysis."–Jamin Raskin, professor, American University Washington College of Law
"Securing Constitutional Democracy is a deep and important book that engages the most fundamental issues in constitutional theory from a fresh and refreshing perspective. Fleming’s book is simply the best elaboration of the implications of political theory in the tradition of John Rawls for the crucial issues in contemporary debates about the fundamental rights. In an era when many constitutional theorists have retreated to minimalism or formalism, it provides a sophisticated and persuasive defense of the Warren Court legacy and insists that the fundamental task of constitutional interpretation is to perfect the Constitution. Every serious student of constitutional theory needs to confront Fleming’s distinctive and original vision."–Lawrence Solum, John E. Cribbet Professor of Law, University of Illinois College of Law
I meant what I said–Fleming is the best at a very important theoretical enterprise–taking our best political philosophy and rigorously developing its implications for constitutional theory. Highly recommended.