by Sotirios A. Barber and James E. Fleming. New York: Oxford University Press, 2007. 208pp. Cloth. $75.00/ £46.00. ISBN: 9780195328578. Paper. $25.00/ £14.99. ISBN: 9780195328585.
Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.
Books reviewed here are scholarly in focus. Some of those books are also controversial in that they challenge accepted perspectives of particular areas of research and theory. Still others are pedagogically useful, surveying ﬁelds of inquiry and putting them into perspective in ways that facilitate learning for students and scholars alike. It is unusual, however, to ﬁnd a book that is scholarly and controversial and pedagogically useful at once. Sotirios Baber and James Fleming’s CONSTITUTIONAL INTERPRETATION: THE BASIC QUESTIONS is one of these rare productions. Barber and Fleming provide us with a scholarly overview of the entire ﬁeld of constitutional theory. That alone would be worth praising, especially since they do it at a reasonable length and in an understandable writing style. They also weave a sophisticated critique of common approaches to constitutional interpretation into their survey. The result is an illuminating way into considerations concerning our basic law that is accessible and interesting to both specialists and students.
No one who does research and teaching in law and courts can ignore theoretical speculations concerning how to interpret the constitution. To see why, consider the problem of collective public action in a democracy like ours. As Dewey pointed out long ago, publics are not inevitable, ever present features of democracies. Modernizing his vocabulary along lines suggested by Shalizi (2007), Dewey held that all publics are potential, a potential realized when the externalities of social life create market failures widespread enough and persistent enough to lead to movements calling for their regulation. If externalities are not recognized or conclusions about how to deal with them reached, publics cannot form and the problem of collective action remains intractable. Normally, struggles in the arenas that create or frustrate such recognition are American politics.
But there is one institution that can transcend these difficulties: courts armed with the power of judicial review. Courts can use their power to interpret the law and, more fundamentally, the Constitution without the formation of publics to support their rulings and despite publics opposing them. It is this potential for court rulings to disrupt the processes that create publics that causes the greatest distress to students of constitutional interpretation. American courts, particularly the Supreme Court, can accelerate or derail new perceptions of collective action. Courts can help create publics through judicial vindication of grievances long [*256] suppressed by the barriers built into our representative institutions. They also, more commonly, defang popular movements by rulings that overturn policies established after hard fought political campaigns.
The solution for this conundrum is to control the extent and nature of judicial decisions. But that is easier said then done. A long history of support for judicial independence and a tradition of decrying political motivations in the judiciary – however contradictory to other American political commitments – precludes direct interference with their decisions. The answer has been a continuing dialogue aimed at establishing a workable theory of constitutional interpretation that can be adopted by judges and constrain them. The ideological ammunition created by the effort affects the education and socialization of lawyers and judges, the selection process for the judiciary, and the country’s electoral politics. Understanding how to make sense of the constitution, then, is not simply a living room exercise for law professors. It is a vital part of the process of forming publics I described above.
Barber and Fleming give us a complete, interesting, and readable critique of that dialogue. Their examination comes in two parts. They begin by asking what kind of constitution we have. Until there is a prior decision on this point, the entire business of how to interpret it is left without an anchor. Their view, backed by a plausible interpretation of the FEDERALIST, is that the Constitution is a tool for achieving a variety of ends best described as protecting the nation’s capacity to develop as a tolerant and entrepreneurial republic that fosters and respects equality of opportunity and individual liberty. As Barber and Fleming see it, the Constitution is positive instrument aimed at providing a government that has the responsibility and energy to accomplish these goals. As we shall see, this view of the Constitution buttresses their critique of methods of interpreting it.
The second half of the book is concerned with analyzing theories of constitutional interpretation. Barber and Fleming’s views are based on an underlying critical assessment that most theories of constitutional interpretation have leapt too quickly to substantive controversies. They hold, with Dworkin, that theories of constitutional interpretation that attempt to avoid making and justifying value judgments are ﬂawed. Such theories abound since it has long been a canon of constitutional interpretation that judges should not let their own value assessments interfere with their application of constitutional requirements. Basing a theory of the Constitution on a prior value judgment would undermine this constraint. Much of the rest of CONSTITUTIONAL INTERPRETATION is a full throated assault on this notion.
Barber and Fleming provide critiques of all commonly used theories of constitutional theory: textual analysis, consensualism, various forms of originalism, appeals to structural constraints, doctrinalism and minimalism, and pragmatism. Trying to summarize their views on all these ideas would take a much longer review than this. Instead, I will try to give interested readers a summary of the critique I [*257] found most useful: their analysis of originalism.
Originalism is probably the most widely adopted theory of constitutional interpretation used today and, as a consequence, the most complex. All, however, are characterized by what Fleming has called the “originalist premise;” i.e. an axiomatic assumption that constitutional interpretation has to be based, in some fashion, on the intentions or understandings of the framers of the original document and of its amendments. The most commonly recognized form is what Barber and Fleming call “narrow” originalism. In this version, those trying to determine what the Constitution meant and what it requires would look at either the intentions of the framers at the time the Constitution or its amendments were written, at the meaning that its words had then, or at how the provisions in question were applied at adoption as an invariant guide to what the document is about. Proponents claim that doing otherwise would leave the ﬁeld open to interpretations that might be diametrically opposed to what the Constitution means and, thus, open the way for judges to undermine the formation of publics and democracy itself.
As Barber and Fleming point out, there are some well known practical difficulties with this position, particularly its intentional variant. No one has suggested a way to reduce the myriad intentions of the framers (provided, that is, one could deﬁne who they were in the ﬁrst place) to a single interpretation. Turning to the “original” meaning of the text or to applications is similarly problematic. But suppose one could ﬁnd a way to support the idea that democracy requires judges to use intentional standards. The problem then shifts to a more general question based on Dworkin’s distinction of concepts and conceptions. Of course, most “narrow” originalist theories depend on an interpretation of the actual personal conceptions that the framers had when the document was written; i.e. what did the framers of the 14th amendment think “due process” meant in 1867, to whom did they intend it to apply, and how, in fact, was it applied? But, given the problems with such an analysis, what if one were to consider original meanings or intentions as concepts – as general, abstract representations of desirable norms? Barber and Fleming call this variant “abstract” originalism and claim it creates an unavoidable need for a “philosophical approach.” When considering, say, “due process” in the abstract, conscientious judges should consider what the term means as a normative concept; i.e. as a moral value intended by the framers of the 14th to be maximized to meet the instrumental ends of the amendment. This requires that judges should undertake a careful reﬂection on how “due process” can best be applied in general within the framework of constitutional law and consistent with looking at the Constitution as an instrument to achieve “due process” as a goal. Such a reﬂection would be best informed by the methods of moral philosophy. In short, the marriage of constitutional law and moral philosophy for which Dworkin has long called is an indispensable tool for any abstract originalist analysis. Indeed, Barber and Fleming see no difference worth discussing between abstract originalism in its various forms [*258] and a philosophical approach to constitutional interpretation.
But what of the “new” originalism? Barber and Fleming refer to these theories as “broad” originalism, i.e. an originalism that seeks to avoid the problems associated with narrow versions while not succumbing to any admixture with philosophical analysis. Their argument here is more complicated, as is their subject. Broad originalists try to split the difference between narrow and abstract originalism by postulating that, although the Constitution does embody abstract principles, it does so at different levels of abstraction. Thus judges might be constrained more by applying an intermediate level of abstraction; i.e. not that the 14th amendment applies only to African-Americans (narrow originalism) or to all persons (abstract originalism) but instead to those persons to whom it can be shown to apply historically. That way there are still constraints on judicial decisions, but the process of constitutional change over time can be accommodated. But if we are after restraints on judges, what, Barber and Fleming ask, justiﬁes going beyond the narrow position? And, further, why stop short of abstract originalism? To them, the answer appears to be a pair of unexamined assumptions: that majoritarian democracy will be undermined if judges are not restrained and that the main character of the Constitution is that it binds all Americans to a regulatory scheme the judges oversee. Barber and Fleming argue that both assumptions are incorrect. They see the Constitution as an instrumental document that commands its agents to act so as to, again, maximize the goals set forth by the document. That, in turn, requires those agents to consider how best to do so, a process that can only involve a consideration of moral values and arguments about them informed by philosophical debate. There is no “broad” originalism, in other words; one either sticks with the narrow version or moves on to an abstract originalism that is indistinguishable from the philosophical approach.
I said at the start of this review that one seldom runs across a book that is scholarly, controversial, and pedagogically useful. I hope that interested readers can see from the summary above what I meant. Barber and Fleming’s treatment of originalism is scholarly. They have thought deeply about prominent authors in the approach and present a useful way of classifying a complex area of constitutional theory. It is controversial. The epigones of the “new” originalism in particular are criticized in ways virtually assuring responses that will further debate. Finally, it is pedagogically useful. Their entire presentation on the subject is written in readable prose and without undue length. Further, their challenge to the various kinds of originalism is almost certain to provoke controversy among interested students. When one remembers that their book covers virtually the entire waterfront of constitutional theory in a similar fashion, it should be obvious why I am enthusiastic about the reception this book will have among scholars both for its intellectual [*259] interest and its academic usefulness.
For all that, I do have some unfulﬁlled curiosities about Barber and Fleming’s own ideas concerning constitutional interpretation. They have put aside their own ways of using the philosophical approach to interpret the Constitution to advance the method instead. Well and good: CONSTITUTIONAL INTERPRETATION is a work of criticism, not an exposition of personal views. Still, it would have been enlightening to see more of their own positions. There is a great deal of talk about the philosophical approach in the book but precious little in the way of actual examples of it. The contrast between a Rawlsian (Fleming) and a moral realist (Barber) could have added that dimension.
But perhaps I should come to a bottom line. I think this book will be a source of continuing scholarly debate for some time. The criticisms made by Barber and Fleming are both well founded and ably argued; I cannot imagine that there will not be both heat and light generated as a consequence. Scholars interested in constitutional theory will ﬁnd it a provocative and interesting read. However, I predict that the greatest use for CONSTITUTIONAL INTERPRETATION will be in the classroom. Finding a strongly argued, stylishly written critique of an entire body of complex literature that is of a reasonable length is rare indeed. Courses at the advanced undergraduate and graduate level and in legal education concerned with theories of constitutional interpretation will ﬁnd this book a godsend. For both these contributions, Barber and Fleming deserve special thanks.
Shalizi, Cosma. 2007. “Review of John Dewey, The Public and Its Problems.” www.cscs.umich.edu/~crshalizi/weblog/algae-2007-10.html (Accessed March 10, 2008).
© Copyright 2008 by the author, Tracy Lightcap.