by Steven Kautz, Arthur Melzer, Jerry Weinberger, and M. Richard Zinman (eds). Philadelphia: University of Pennsylvania Press, 2009. 328pp. Cloth. $49.95/£32.50. ISBN: 9780812241662.
Reviewed by Sonu Bedi, Department of Government, Dartmouth College. Email: Sonu.S.Bedi [at] dartmouth.edu.
Most work on American constitutional law explores issues of constitutional interpretation and development, legal history, doctrinal or case law analysis, or social and political rights. THE SUPREME COURT AND THE IDEA OF CONSTITUTIONALISM is a provocative and illuminating series of essays that interrogates the very idea of constitutionalism rather than any one particular constitutional theory of interpretation or analysis. According to the editors, “[r]eflection on the character of the politics of constitutionalism is the overarching theme of this volume” (p.4). The ensuing essays do not so much consider the politics but rather the logic, theory, and system of constitutions. That is, what does it mean to have a constitution? What are the central features of American constitutionalism? What is the relationship between a constitution and the people it governs? What is the role of the judicial branch in a well functioning constitutional system? In what ways do constitutions differ in character? These are important questions, ones that, as the editors correctly point out, move “beyond the questions that divide the parties of the day” (p.1). The essays primarily discuss the logic of the United States Constitution,with two essays taking a more comparative perspective. The volume is divided into five Parts.
Part I analyzes the philosophical underpinnings of the idea of constitutionalism. Nathan Tarcov asks us to look to the history of political philosophy in better appreciating what it means to have a constitution. Drawing from Plato’s LAWS and Aristotle’s POLITICS, Tarcov suggests that the mixed regime (or “second best” regime) informs the ancient notions of constitutional government. These notions “are not based on a naïve or idealistic faith in the goodness of human nature . . . on the contrary, they recognize the necessity of countervailing institutions to check the universal human inclination toward tyranny, hubris, and pleonexia” (p.29). Tarcov connects this all-too-familiar logic of checks and balances with the modern idea of constitutionalism, one that incorporates Machiavelli’s take on foundings and the significance of Lockean consent. Rather than seeking commonalities between the ancient and modern ideas, Steven Kautz defends the distinctive liberal idea of constitutionalism, one which privileges the rule of law over private judgment. A core component of this liberal conception is “We the People.” Kautz defends it from classical objections that it is just a partisan description, one that does not rise above a partial conception of justice. In analyzing the alleged “nonpartisan” notion of “We the People,” Kautz seeks to temper the [*56] commitments of liberal constitutionalism.
Part II takes a historical approach to understanding American constitutionalism. These essays all tackle the problem of judicial review. In particular, they explore the textual, philosophical, and historical question of whether the Supreme Court ought to be the privileged interpreter of the Constitution. That is, leaving to one side one’s favored theory of interpretation, what role, if any, should other co-ordinate branches have in speaking upon constitutional issues? All too often we assume that the Supreme Court has the final say in constitutional matters. These essays interestingly question this assumption. Michael Zuckert analyzes this issue by considering three “essential institutions” proposed by James Madison that the constitutional convention ultimately rejected. These included: “a council of revision, a congressional negative on state law on behalf of federalism, and a congressional negative on state laws on behalf of individual rights and justice” (p.57). Zuckert argues that the convention’s rejection of these bodies informs a Madisonian view of judicial review that is ambivalent even paradoxical: the Court “has the implicit duty to be more than a legal institution” but “it has the explicit duty to be nothing but a legal” one (p.77). Leslie Friedman Goldstein looks to two “peaks of excellence in the history of judicial review[:]” “the jurisprudence of John Marshall” and “the decision in BROWN v. BOARD OF EDUCATION (1954).” She argues that we consider these “peaks” not so much on the basis of the reasoning deployed by Marshall or the BROWN court. Rather, our admiration arises because in these instances the Court “correctly discerned and delineated the constitutional principle at stake and . . . deployed the judicial statesmanship required to make the principles stick as a matter of the rule of law” (p.87). James Stoner squarely confronts the question of who has the authority over the Constitution. He appeals to various instances of early constitutional resistance in the face of the Court’s supremacy including the passage of the 11th Amendment overturning the Court’s expansion of federal jurisdiction in CHISHOLM v. GEORGIA (1793) and Andrew Jackson’s veto of the Second United States Bank on constitutional grounds. Stoner draws from these cases to suggest that “constitutional resistance” invariably entails a kind of compromise. As Stoner points out, we must be willing to “admit that there are two sides to most constitutional questions and that the genius of constitutionalism is in acknowledging this fact and providing forms to accommodate it” (p.111).
Part III considers the underlying logic of non-American constitutions. Mark Tushnet’s essay recovers James Bradley Thayer’s “weak-form” of judicial review contrasting it with the “strong-form” practiced in the United States. Countries that practice a weak form of review include New Zealand, United Kingdom, and Canada. For example, the New Zealand Bill of Rights mandates that “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meanings” (p.120). Weak judicial review permits other branches to interpret a constitution. The strong form on the other hand, exemplified by such cases as CITY OF BOERNE v. FLORES (1997), [*57] contends that the Court is the privileged interpreter of the Constitution. No other branch may interpret the Constitution even if the interpretation is reasonable. Tushnet contrasts these types of judicial review and their implications for a dialogical account of constitutionalism in which co-ordinate branches speak to one another. Instead of focusing on the varying intensities of judicial review, Gary Jeffrey Jacobson draws our attention to the relationship between constitutional tradition and the regnant social order. In forcing us to step back from any particular constitution, he distinguishes between acquiescent constitutionalism, a constitutional logic that seeks to preserve social order, and militant constitutionalism, one that seeks to transform it. Counter-intuitively he argues that the United States Constitution is far more preservationist than militant, drawing a contrast to the Indian Constitution. Jacobson argues that whereas the Court in REYNOLDS v. UNITED STATES (1878) pointed out that polygamy was “subversive of good order” the corresponding Indian supreme court decision argued that an anti-polygamy program created “good order.” “The juxtaposition of the defensive rationale of the American Court and the proactive reasoning of its Indian counterpart directs our attention to the contrasting ways in which the two constitutions relate to their respective social orders” (p.151).
Part IV analyzes the tension between democracy and constitutionalism. Larry Alexander revisits the question of what role the Court ought to have in our constitutionalism. He clarifies what is at stake in this debate by making the issue one of institutional competence. “Both ordinary majoritarian legislative decision-making and judicial decision-making are to be judged by how well they perform their tasks. Institutional design, including whether legislatures should be constrained by constitutional limits . . . is a matter of epistemological and motivational superiority, not a matter of moral principle” (p.168). Robert P. Young, Jr. defends a kind of judicial traditionalism or orginalism against what he calls the “Rorschach School” of interpretation. In particular, he sets his sights on Justice Breyer’s theory of “Active Liberty.” While he draws from the Constitutional convention to de-emphasize the role of the judiciary, his essay is less about constitutionalism and more about arguing for a particular theory of constitutional interpretation. Rogers M. Smith tackles the puzzle of democratization and what he calls “juristocracy.” That is, what accounts for the following two seemingly contradictory trends: “the spread of democracy” and “the rise of courts with the power to invalidate national legislation” (p.199). Drawing from Machiavelli’s political sociology of the grandi (the great) and the popolo (the people), Smith suggests that power of judicial review is driven by elites. Elites invest courts with the power to review democratically enacted legislation in order to ensure (at least partially) their “hegemonic status” (p.203). In doing so, they seek to temper the power of democracy.
Part V understands constitutionalism via politics. Keith Whittington’s contribution – which focuses more on the political character of constitutionalism than the other essays – locates the binding nature of [*58] constitutions in political practice. Eschewing a more theoretical approach, Whittington provocatively argues that we “cannot expect constitutionalism to operate outside of politics.” Rather, constraints imposed by constitutions “might fail because of politics, but they also must be maintained through politics” (p.223). Benjamin A. Kleinerman concludes the volume by considering the Supreme Court’s treatment of the constitutionality of cases implicating executive prerogative. He argues that the Court’s decisions in this area perversely contribute to the people’s willingness to pass the constitutional buck. In particular, “the court’s tendency to interpret the Constitution legalistically” to control executive action discourages Congress’ role in deploying the Constitution politically (p.251). Implicating the essays of Part II, Kleinerman laments the identification of American constitutionalism with the privileged role of the judiciary.
Often individual essays in edited collections run on their own tracks with no real sense of the arguments being made by their fellow contributors. Thankfully, this volume avoids such a charge. Given that the essays were drawn from two conferences, a virtue of the book is that the contributors do seem to be responding to and taking into account the arguments of their fellow contributors. This is not simply in direct reference to other essays in the volume but rather a keen sense that the contributors are all exploring a similar constellation of puzzles including the underlying theory of constitutionalism, the rule of law, the privileged status of the Supreme Court, the existence of judicial review, the relationship between the people and constitutionalism, and the character of a constitution. This volume would be of interest to scholars in political science and theory, public law, comparative constitutionalism, and, of course, constitutional law.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
CHISHOLM v. GEORGIA, 2 U.S. (2 Dall.) 419 (1793).
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1878).
© Copyright 2010 by the author, Sonu Bedi.