by Susan Burgess. Burlington, VT: Ashgate Publishing Company, 2008. 154pp. Hardback. $89.95/£50.00. ISBN: 9780754672456.
Reviewed by Margaret S. Hrezo, Associate Professor and Acting Chair, Department of Political Science, Radford University. Mhrezo [at] radford.edu.
In THE FOUNDING FATHERS, POP CULTURE, AND CONSTITUTIONAL LAW: WHO’S YOUR DADDY? (hereafter referred to as WHO’S YOUR DADDY?) Susan Burgess pulls together previously published work and two new pieces to make one overall argument: The golden chord between the legitimacy of judicial review and the intent of the framers must be snapped in order to move beyond the founding period’s brutality, patriarchalism, and lack of concern for the powerless in society. Burgess proposes “narrative analysis, popular culture, parody, and queer theory” as means of (1) democratizing constitutional debate; (2) providing a “more interesting and hip way of understanding and reconstituting politics;” and (3) pointing the way to resolving the generation-long impasse between judicial activism and judicial self-restraint. She pursues her goal by re-casting the constitutional theories of Keith Whittington, Ronald Dworkin, and Derrick Bell as romance, comedy, and tragedy. In the final two chapters on BUSH v. GORE and LAWRENCE v. TEXAS, Burgess relies on queer theory to highlight what she believes to be the instability and constitutional groundlessness of contemporary Supreme Court decision making. In so doing she has produced an immensely interesting and thought-provoking book that should be read by graduate students and scholars of constitutional law as much for its weaknesses as for its strengths.
Burgess analyzes Keith Whittington’s originalism from the perspective of a romance novel. Like a romance novel, she argues that Whittington’s work reads contemporary jurisprudence as engaged in an endless quest to overcome alienation from its “true self” (intent of the framers) and return to a “simpler time characterized by more authenticity and less corruption” (p.13). Activist courts play the role of the villain placing obstacles in the path of return. She provides a close textual reading of Whittington’s work to support her argument and her use of the romantic form to unearth additional layers of meaning succeeds. In Burgess’ view, the American founding is grounded in brutality and self-interest, in particular the brutality of slavery. Why then, she asks, should we honor its views of the meaning of the Constitution (even if they are ascertainable) over all others? Why should the nation continue to privilege a perspective that denigrated, marginalized, and ostracized significant parts of its political community? This may be an impertinent question, but it is one relevant to the discussion of constitutional interpretation.
In addition, Burgess questions continued dedication to an interpretation of the document’s ambiguous passages in ways that were meaningful in 1789 but may not apply to contemporary America. This point has [*899] been made many times by multiple scholars, and Burgess does not move forward the discussion any further. Finally, she argues that Whittington’s argument takes itself far too seriously and that conversation about constitutional interpretation would benefit greatly if all parties took themselves and their theories more lightly. I could not agree with her more. However, it would be disingenuous of me not to confess immediately that I do not “get” Burgess’ sense of humor. She and some others who have read this book find it quite humorous. There are many others on whom the humor will be lost, and the biggest weakness of this book is a self-conscious sense of its own importance and a self-congratulatory praise of its hip sense of irony and humor, both of which the author refers to at least twice in every chapter. In addition, she may push the analysis too far in her section on the unresolved problems of romantic novels: (1) idealization of the beloved by disregarding faults; (2) the complications introduced as people change; and (3) lack of humor. The readings of PRIDE AND PREJUDICE and THE WIND DONE GONE tend toward the simplistic.
Burgess compares Ronald Dworkin’s work to a comedic soap opera and uses the popular ONE LIFE TO LIVE (OLTL) and the film THE PATRIOT as her points of reference. Dworkin, she maintains, seeks to legitimize judicial review by emphasizing the limits on judicial review and attempting to show the continuity between the framers of the constitution and the program of rights and toleration he supports. In her view, he is unsuccessful because, although he seeks the opposite result, his work acts as much to stabilize the originalist understanding of the founding as it does to undermine it. This chapter is not as convincing as the reading of Whittington. THE PATRIOT does not serve her argument well. OLTL does, but part of her analysis undermines its general validity. She is correct that viewers understand OLTL does not portray “real” family life. At the same time, it is not likely they see the show as ironic parody. The show’s lack of reality does not prevent viewers from identifying with characters on OLTL and taking these “stories,” as my grandmother used to call them, very seriously at an emotional level. The best part of this chapter is the section on Justice Scalia’s dissent in LAWRENCE v. TEXAS. In it she skillfully dissects Scalia’s opinion, while using it to heighten the reader’s understanding of the problems with Dworkin’s analysis.
Tragedy is the theme of her chapter on Derrick Bell and critical race theory. In tragedy, the protagonist accepts the inevitability of failure and recognizes the impossibility of changing either the past or the future. “Heroes are admirable not because they can win; they cannot. Rather, they are admirable because they are able to bear the worse that heaven and earth have to offer, and . . . they are able to make great meaning for themselves and their communities” (p.58). Thus, although Bell demonstrates the persistence of perverse and brutal power relationships within the American constitutional system, the tragic form he employs in his work precludes any possible transformation.
The chapters on BUSH v. GORE and LAWRENCE v. TEXAS are the book’s most interesting. They also are the most disturbing. In them Burgess argues that Supreme Court decisions have no grounds other than a justice’s individual [*900] political values and political power. For her, BUSH v. GORE plays like a traditional homosexual coming out narrative in which a gay or lesbian continues to maintain strenuously they are straight, while at the same time becoming more public in their homosexuality. In the same manner the Court’s decision in BUSH was an activist one based in party politics at the same time that the Court adamantly argued its attachment to self-restraint and purely legal considerations. By her account, the LAWRENCE Court deconstructs the rule of BOWERS v. HARDWICK and formulates a new one that rejects the essence of the old rule while maintaining the appearance of continuity. As in QUEER EYE FOR THE STRAIGHT GUY, the members of the Supreme Court: (1) reviewed the facts given them; (2) decided what aspects of the old rule to eliminate; (3) incorporated the ideas of family and friends in the form of amicus briefs, scholarly literature, and ideas from European law; (4) developed a new rule that they assert the founders would approve; and (5) evaluated implementation of the new rule (p.102). Burgess believes that her parody of these two cases suggests the importance for constitutional law of leaving home. Her message is that constitutional law must abandon the myth of origin that has bounded constitutional discussion, discard the old constitutional story, and choose a new narrative. This is possible, she believes, because identity is performative, a conscious choice. Her analysis of these cases does support her argument, but because these cases are such straw men, one wonders if they are the best choices for demonstrating her point. It also is important to remember that the past does shape the future and that it is not possible to completely “leave home.”
In many ways this book successfully accomplishes the author’s goal of destabilizing the debate over constitutional interpretation. Burgess demonstrates her talents as a creative scholar who reads texts both carefully and innovatively. At this point in time, any realistic student of constitutional law would be hard-pressed to deny the futility of continuing the fight to “prove” the legitimacy of either judicial activism or judicial self-restraint. Perhaps that is why a number of scholars have treated normative and interpretive minimalism/maximalism separately. However, although this move results in a more nuanced and precise understanding of what actually is happening in judicial decision making, it does not address the problem of legitimacy. What is it that makes a judicial decision a legitimate exercise of authority? Burgess seems to understand this when she writes “The problem for Scalia, and for all parodists, is that revealing the groundlessness and illegitimacy of opponents’ arguments will typically also serve to destabilize other positions – including their own – if, as is usually the case, such positions are grounded at least in part, on the stability of constituent elements of the discourse, such as law, history, liberty, paternity, and so forth” (p.52). The problem for Burgess is that those, such as herself, who attempt totally to remove any stable ground for decision making face the same problem. Human beings are their stories, and old identities cannot be sloughed off like the snake’s skin and replaced with new ones. Further, activism and self-restraint are two ends of a continuum of interpretive and normative approaches to judicial [*901] decision making rather than two totally isolated and unrelated poles.
WHO’S YOUR DADDY? leaves the reader with a sense there is no legitimate foundation for authority. In this book, politics and law are about power and nothing else. This leaves no possible grounding for the tolerance and equality Burgess advocates. About two-thirds of the way through the book Thomas More’s words from A MAN FOR ALL SEASONS came to mind. It is the place where More asks his son-in-law Roper, who has become an advocate of revolution, what he will do when all the laws are down and he must turn and face the devil alone. This question remains a problem in a book whose foundational analysis rests on the need to ensure that the American Constitution protect the marginalized and powerless as well as the mainstream and powerful. That is the double-edged sword of Burgess’ call for the use of irony and popular culture to “open up” discussion of constitutional rights because they are more democratic. Most people neither understand nor appreciate irony. Burgess and others may find ONE LIFE TO LIVE ironic and humorous in its treatment of the American family. A majority of its viewing audience would not. Can a sense of humor that appeals only to the “hip” move forward a genuine discussion of constitutional interpretation? Richard Rorty, whose theories Burgess’ argument often seems to parallel, understood that. He recommended irony for the elite and tradition for the masses, because the masses cannot live without some foundational principle and because they are not particularly sympathetic to the goals of the artist, poet, and revolutionary. Popular sovereignty often does not see the need to change systems that benefit it in order to ensure justice and equality for groups considered “Other.” The narrative arts do open up understanding of theoretical and legal concepts in important ways and make them more accessible to the understanding of both a general audience and to experts. Irony and parody point out individual and societal foibles. But irony and parody do not provide a path away from them. In the end her analysis does not lead anywhere. Just how do we go about creating the new frames of reference she argues irony and parody reveal? On what basis should we reformulate our stories about power and authority? Yes, the founding was flawed by brutality and self-interest. Yes, one can read Whittington as a romance novel, Dworkin as a comedy, and Bell as a tragedy. Yes, these readings demonstrate the flaws of the constitution and the problems facing contemporary constitutional interpretation. The reader of this book is likely to remain unconvinced we did not realize those flaws prior to WHO’S YOUR DADDY? and want to see what grounding for a system of rights adjudication Burgess’ analysis might provide.
Bolt, Robert. 1990. A MAN FOR ALL SEASONS. New York: Vintage Books.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
BUSH v. GORE, 531 U.S. 98 (2000).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
© Copyright 2008 by the author, Margaret S. Hrezo.