by George Thomas. Baltimore: The Johns Hopkins University Press, 2008. 264pp. Cloth $50.00. ISBN: 9780801888526.
Reviewed by Douglas C. Dow, Department of Political Science, The University of Texas at Dallas. Email: dougdow [at] utdallas.edu.
Readers of George Thomas’ recently published book, THE MADISONIAN CONSTITUTION, should not expect a detailed analysis of the Framer’s constitutional thought during the 1780s or as it evolved at later points in his long career. Instead, the author adopts Madison’s name and a handful of his writings to delineate an ideal type of constitutional theory and practice. In this ambitious, densely written and thought provoking work, Thomas proposes a perspective on constitutional interpretation that is at once a normative theory of constitutional practice and a redescription of constitutional history informed by that practice. Thomas challenges some of the common understandings of constitutional authority, especially the ideas of judicial supremacy and popular constitutionalism. He offers instead an alternative explanation of how constitutional meanings are made, one that emphasizes the irreducible element of institutional contestation and conflict. Thomas’ MADISONIAN CONSTITUTION rejects a strictly legalistic or political reading of the document, promising instead to restore a “constitutional perspective” (ix, italics in original), that better respects how the text actually underpins the practices of both law and politics.
In his first two chapters, Thomas lays out an explanation of his theory of proper constitutional interpretation. Much of the weight in describing a Madisonian Constitution is spent describing what it is not. He challenges the idea that the Supreme Court should be the hegemonic institution empowered with the authority to pronounce through judicial review the ultimate word on constitutional interpretation. By claiming to be the final arbiter of meaning, the Court illegitimately seizes a power of sovereignty reserved for the document itself. Judicial supremacy also redirects the meaning of the Constitution to constitutional doctrine, and this legalistic vision of the document transforms the Constitution into a set of mere legalities, “narrowing and distorting the constitutional mind-set” (p.36). But for Thomas, it is not just the Court, but any single authority that claims to be the final determiner of meaning, that must be rejected. In that vein, he has sharp words for adherents of popular constitutionalism, in whose hands “democracy becomes primary, as other formal institutions should yield to the people’s judgments about constitutional meaning” (p.157).
Institutional forms are indeed the key to Thomas’s normative vision of the Constitution. Abandoning the idea that there is a single non-textual authority capable of speaking in the name of the Constitution, he argues that the document establishes a system of countervailing powers, in which the three branches of the federal government [*29] compete with each other through a system of interlocking powers and authorities. While sustaining the ultimate sovereignty of the text, Thomas emphasizes that Madison designed a constitution that calls forth institutions that each have the equivalent responsibility for articulating explanations of what the Constitution means. As a result, constitutional meaning can never be settled, as each branch properly asserts its own interpretation.
The central four chapters of THE MADISONIAN CONSTITUTION each describes an historical episode meant to exemplify the practice of constitutional engagement by each branch and the inherent clashes built into the system. The first lays out some of the conflicts between Congress and the Court during the 1870s over the meaning of the Reconstruction Amendments, as well as over which branch possessed the ultimate authority to enforce that meaning. The remaining three moments form something of a trilogy, examining the rise and critique of the Administrative State. Thomas starts with a description of the challenge launched by the Progressives against the Supreme Court’s resistance to national economic regulation. This is followed by another chapter that positions the push by the Roosevelt Administration to expand the authority of the national government broadly within the context of progressive thought. He concludes his historical analysis with an examination of the Reagan Administration’s attempts to counter judicial supremacy and New Deal federalism, through the promotion of departmentalism and an originalist philosophy.
Each historical chapter offers a redescription of events and arguments designed in a fashion that brings to light the fidelity of that historical moment to his ideal type. These episodes are familiar to constitutional scholars, and Thomas makes it clear that his intent is not to give a full historical account of each conflict. While each chapter contains numerous insights, their true significance lies in Thomas’ collective use of them to provide a broad outline of how the Madisonian Constitution operates. By exploiting the thematic continuities, Thomas rather convincingly demonstrates that these episodes should not be thought of as crises or even necessarily as establishments of new constitutional regimes. However, these chapters also reveal troubling questions about the relationship Thomas wants to sustain between his normative vision of Madisonian practice and the political realities of American constitutional history.
While Thomas argues that the Constitution establishes institutional forms designed to engage regularly in battle with each other, he is not willing to reduce constitutional practices to just another form of politics. As a result, Thomas does not appear to be interested in emphasizing the singular and contingent behaviors taken by historical actors reacting to localized crises and reaching out for political goals. Instead, in an attempt to wrestle philosophical coherence and permanence out of constitutional history, each episode is designed to reflect not its uniqueness but rather a reoccurrence of the same pattern of behavior. “In Madisonian terms, such conflicts are never-ending: they have persisted since the founding and will remain with us long into the twenty-first century” (p.167). [*30] Ironically, Thomas’ approach to constitutional interpretation, with its emphasis on inter-branch fights, nevertheless manages to keep the actual politics of these fights at arm’s length.
Thomas is interested in the basic forms that the conflicts take more than the conflicts themselves. As a result, his historical descriptions exist at a high level of generality, as Thomas seeks to wring from them broader meanings, translating grubby politics into nobler contestations over constitutional meaning. To take one example, Thomas argues that Reagan’s defense of departmentalism and his challenges to national supremacy are his attempts to return to “first principles” (p.126). Nowhere does Thomas give an account of the particular political battles of the Meese Justice Department in its struggles against independent agencies or independent prosecutors. It is, of course, these local conflicts, against Congress as much as the federal courts, which gave birth to the initial idea of the unitary executive, a concept which Thomas dispatches in a sentence.
In these accounts, political actors are obliged to talk like constitutional scholars, whatever their intentions, and the discourse they are compelled to speak often sounds much like Thomas’. It is difficult to tell sometimes whether the politicians Thomas discusses share his fidelity to a Madisonian constitutionalism or whether the Madisonian Constitution is visible only from the distance of the scholar. “The written text brings institutional forms to life that look back to the text as part of bringing the Constitution to life – making fundamental law an actual constitution” (p.15, italics in the original). In such passages, Thomas renders opaque the actual agency of political representatives, and he suggests, without clarification, that political institutions are capable of enacting their own logic, independent of the intentions of particular persons.
While acknowledged as not a fulsome history, Thomas’ four episodes are marked as much by what is left out as by what is included. Excluded are a number of topics that might disrupt the dominant narrative of persistence of the Madisonian ideal throughout American history. For a book that signals its preoccupation with the separation of powers, there is a noticeable lack of sustained discussion about key subjects in that area. Most noticeable is the absence of any deliberation on the continuing disagreements about the proper distribution of war powers, or the concern over the expansion of presidential prerogative. Developments since the end of World War II have revealed not only the disproportionately expanding authority of the commander-in-chief, but also the acquiescence by Congress to this growing power, and the timidity or helplessness of the federal courts to resist a determined president.
If the choices Thomas has made as a constitutional historian are sometimes troubling, it is all in service of expressing the normative vitality of his ideal type of the Madisonian Constitution. It is on this subject that I have found the most interest, and the most frustration. I have found interest because throughout the text are scattered ideas about what kind of constitutional meaning is produced by these constant episodes of conflicts. For example, Thomas speaks of the need for judgment [*31] and suggests in the introduction that greater attention to constitutional conflicts will allow us “to distinguish far more vividly than we do constitutional propriety from constitutional meaning” (p.6, italics in original). However, this intriguing dichotomy is never further explained, and what constitutional propriety means is never defined. However, beyond the hint that part of constitutional propriety requires each branch to acknowledge the right and obligation of the others to form its own judgment of constitutional meaning, little more is forthcoming.
THE MADISONIAN CONSTITUTION must be admired as an ambitious work, one that seeks both to articulate a vision of strong constitutional responsibility and to read this vision into a history of constitutional development. Thomas’ critiques of the problems of judicial supremacy and popular constitutionalism are illuminating. He engages evocatively with contemporary literature on the Constitution, with some of his most interesting methodological debates taking place in the endnotes. Ultimately, however, this is a frustrating work that delivers vague hints at alternative notions of constitutional responsibility and propriety without the detailed follow through such concepts require. In the end, readers will come away with a clear idea of what a Madisonian perspective on the Constitution is not. But a picture of what it is will have to wait for further elaboration.
© Copyright 2009 by the author, Douglas C. Dow.