by Michael Conant. New Brunswick, New Jersey: Transaction Publishers, 2008. 324pp. Hardback. $59.95. ISBN: 9781412807746.
Reviewed by Scott A. Beaulier, Stetson School of Business and Economics, Mercer University. E-mail: beaulier_sa [at] mercer.edu.
Michael Conant’s THE CONSTITUTION AND ECONOMIC REGULATION is an insightful, well-researched book. I enjoyed it, and I think legal scholars, philosophers of science, and economists will read it with delight. While Conant describes the work as an economic analysis and critical commentary on particular economic clauses of the Constitution, the book could be better described as an epistemological or hermeneutic analysis of law with applications to particular clauses of the US Constitution.
The fact THE CONSTITUTION AND ECONOMIC REGULATION is less about economics and more about knowledge and truth takes nothing away from its overall value, however. In fact, the great strength of the book can be found in the early chapters when Conant establishes the meaning of intent and argues persuasively for an objective approach to the Constitution. For Conant, Truth (with a capital T) and intent in the Constitution can be found if we look hard enough at the social context and legal framework at work in the 1780s when the Constitution was being developed. As he puts it (p.27), “the search for subjective intent of the framers and ratifiers, a popular slogan of some political conservatives, is an impossibility.” Though we cannot determine subjective intent, the project of understanding or interpreting the meaning of the Constitution (what Max Weber and a number of Austrian economists describe as verstehen) is not pointless. Instead, meaning can be found through careful “textual analysis” and a study of the “total social context.” In other words, to be good legal scholars, people need to be good historians, too, and Conant insists the Constitution cannot be understood in the absence of a clear understanding of the legal theory influencing it. In addition to reading British law, he encourages readers (p.31) to study the “common-law canons of documentary construction” that influenced the Constitution.
For Conant, then, objectivity is attainable through careful analysis. The existence of objectivity leads Conant to argue against stare decisis. He does not want to see precedent followed for precedent’s sake when there is an underlying true law that is at our disposal. Conant’s faith in objectivity also pushes us away from the “Anything goes” kind of relativism we find in contemporary law. For Conant, good law and bad law depend on whether or not they were consistent with the original intent of the Constitution, and this thing we call “intent” is something “reasonably educated” people can get at through hard work and careful study. [*325]
Conant is at his best in the early chapters of the book (Chs 2-4). Here he lays out his objective theory of law and the US Constitution before then applying it to particular clauses in the Constitution. In these chapters, the reader will enjoy a meaty discussion of epistemology and the search for meaning. As someone with an interest in philosophical hermeneutics, I was intrigued by Conant’s discussion, particularly how an objective approach to law would limit judicial review to constitutional issues. Chapters 5 through 10 then apply Conant’s discussion of objectivity to clauses like the Commerce Clause and the Fourteenth Amendment. While these chapters were also well-researched and important in demonstrating the need to have a correct constitutional understanding to guide legal decisions, I started to feel like I “got” the Conant approach towards the tail end of these chapters and found the number of different topics to be a bit overwhelming.
While I am a fan of the book as a whole, I have a few minor quibbles. First, I think Conant at times gives too much credit to the founders. He says (p.31) that they were “mere agents of the people as a whole,” and he wants us to think of them as framers of an important legal text who went about drafting this document influenced only by law and the social context that surrounded them. There are, of course, more skeptical (cynical?) interpretations of the founders’ motives that point out the role their own personal economic interests played in their attitudes towards the constitution. I wonder how Conant’s arguments would change if he assumed a greater level of self-interest in the people at the Constitutional Convention.
Second, the book starts off with a paper-thin chapter on economic theory and promises to apply basic economics throughout. As I stated earlier, though, Conant’s discussion of economics is minimal, and he does not appear to be relying on any kind of economic model at all. His model, and the work as a whole are contributions to epistemology, rather than law and economics. While I believe the works are nice and important discussions about meaning and knowledge, I think the book’s title is inappropriate and the Chapter 1 discussion is unnecessary.
Third, while the book is explicitly aiming to be interdisciplinary, it was at times too confusing and esoteric. Conant often assumed too much knowledge on the part of the reader when it came to past legal cases, and he could have done more with less by covering a few less clauses and providing more detail on each of the ones covered.
Finally, a concluding chapter could have greatly enhanced the work. The reader is left with a dangling chapter on the Equal Protection Clause with nothing more following. For a book that takes such a unique and important approach to understanding flaws in our current legal system, a concluding chapter that wraps up the work would have been nice.
© Copyright 2009 by the author, Scott A. Beaulier.