by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder. New York: Oxford University Press, 2010. 248pp. Hardcover. $21.95/£13.99. ISBN: 9780199738779.
Reviewed by Philip Shadd, Department of Philosophy, Queen’s University (Kingston, ON). Email: philip[dot]shadd[at]queensu[dot]ca.
Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder frame their argument in KEEPING FAITH WITH THE CONSTITUTION by dividing existing theories of constitutional interpretation into two camps, and by presenting their own theory as a third option (pp.25-26). On the one hand are theories that argue the constitution should be interpreted as the original Framers would have understood it; on the other are those that argue the constitution should be viewed as a “living tree.” The theory proposed by the authors – “constitutional fidelity” – is preferable to both because it recognizes that in order to be faithful to the constitution, interpretations must account both for the principles of America’s jurisprudential past as well as for the changing social contexts in which those constitutional principles must now be applied. Only in this way can the constitution remain a vital and democratically legitimate document for future generations of Americans. Although they initially frame their approach as an alternative to two others, it becomes clear as the book progresses that the main position with which constitutional fidelity is to be contrasted is Originalism. Indeed, while one way in which the argument of the book might be sharpened is to more clearly distinguish constitutional fidelity from “living tree” approaches, one of KEEPING FAITH WITH THE CONSTITUTION’s main achievements is the anti-Originalist argument it convincingly makes with reference to a host of cases from American history.
The book breaks naturally into two parts. The first two chapters provide a brief introduction to the history of the American constitution and explain the theory of constitutional fidelity. Chapters 3 through 9 illustrate the practice of this style of constitutional interpretation with cases from American history. The opening historical discussion includes a survey of relevant aspects of the 1789 Constitution, of the Bill of Rights, and of the Reconstruction and Post-Reconstruction Amendments. It helpfully familiarizes the reader with many of the relevant constitutional facts that will be under analysis for the rest of the book, and is part of what makes the book a very readable and user-friendly volume. Most of the work’s philosophical elaboration of the theory of constitutional fidelity proceeds in Chapter 2.
According to this theory, the constitution must be understood as securing a framework for America’s political institutions, a purpose that it can serve only if it is understood to provide general principles that can flexibly be applied in a variety of situations given changing circumstances and societal norms. If the constitution is understood [*435] in the way of Originalism or Strict Constructionism, it will be unresponsive to changing contexts, and, as such, will cease to be either relevant or democratically legitimate. The authors make the provocative point that in order to remain faithful to the constitution, applications of the constitution must actually change (pp.27-29). They are self-aware of the counterintuitive appearance of this point; indeed, Originalists would attack the authors for being unfaithful to the constitution precisely because they do permit the constitution to be applied in ways that the original Framers neither foresaw nor intended. Pace the Originalists, Liu, Karlan, and Schroeder argue that, by following the approach of constitutional fidelity, interpreters are faithful to the constitution insofar as the constitution has always been intended to serve as a document that would remain relevant to many future generations of Americans and to many unforeseen circumstances.
As part of their argument for understanding faithfulness to the American constitution in this way, the authors maintain that an essential desideratum of constitutional interpretation is that the interpretation keep the constitution vital. A constitution that is vital is one that enjoys democratic legitimacy. This desideratum of constitutional vitality is an intriguing proposal, and one possible way in which constitutional fidelity might be distinguished from “living tree” approaches. However, as I will now explain, this issue of vitality and democratic legitimacy is also one that the authors need to handle with greater precision and care.
In Chapter 2 and beyond, one of the most distinctive claims of the argument is that constitutional interpretation must take into account “the evolving norms of our society” (p.26). In the course of the book, Liu, Karlan, and Schroeder give several examples of such changing norms: the shift from disagreement over the wrongness of slavery to unanimity on the wrongness of racism (chapter 3); evolving views on the rights of women and gender equality (chapter 3); increased importance placed on the freedom to criticize American military action (chapter 4); a greater appreciation of the need for the federal government to play a role in regulating the economy (chapter 5); an expanding view of the private sphere over which individuals ought to be autonomous (chapter 9); and more. By allowing these changing norms to affect how the constitution is interpreted and applied, the American public is able to “see the Constitution’s text and principles as its own” (p.38). By reflecting the current values of the demos, the constitution remains both democratically legitimate and vital.
Liu, Karlan, and Schroeder need to be more careful in handling these issues of vitality and democratic legitimacy because it is unclear what normative weight they attribute to this aspect of constitutional interpretation. Are they saying that it is normatively important for constitutional interpretations to reflect contemporary norms whatever those present norms might be? Or are they saying that it is normatively important for constitutional interpretations to reflect contemporary norms only when these norms are morally desirable? They certainly should not say the former: to put the point crudely, something is not right just [*436] because it is popular. But if they mean the latter, they neither clearly state so, nor give any argumentation on the grounds of which they could defend the latter. There seems to be a clear difference here between the theory of constitutional fidelity and Ronald Dworkin’s legal theory. Dworkin is clear that law ought to be given its objectively best interpretation, no matter the prejudices that might prevail in society at a given time (Dworkin 1986). By contrast, according to constitutional fidelity, while a constitutional interpretation that countervails the prejudices of society at a given time might better serve the broad values of liberty and equality, such an interpretation would seem to do so at the expense of the constitution’s vitality and democratic legitimacy. They note that constitutional interpretation involves “both countermajoritarian and majoritarian elements” (p.25), but give little guidance as to how such countervailing elements are to be brought into balance.
Following the first two chapters, most of the rest of the book (Chapters 3 through 9) paints a persuasive and richly illustrated picture of the general trajectory of American constitutional interpretation. The illustrations include many of the most celebrated cases in American history: BROWN v BOARD OF EDUCATION, REYNOLDS v SIMS, BRANDENBURG v OHIO, and many others. Such decisions illustrate Liu, Karlan, and Schroeder’s theory, being examples of constitutional interpretations that have been made in response to social movements and to changing technological and material circumstances, and that thereby remain faithful to the constitution by keeping it a vital expression of shared American values. In Chapter 3 on Equality, for instance, they explain that the rejection of a “separate but equal” interpretation of constitutional equality was motivated by an appreciation of actual social circumstances in which Jim Crow laws had the effect of perpetuating inequality rather than securing equality for black Americans. In Chapter 4 on Free Speech, they argue that Americans’ present understanding of the right to free speech – as a right that defends extensive criticism of U.S. military action – did not come about by analyzing original meaning, but by national experiences in which government suppression of dissent unduly infringed on Americans’ freedom to protest and unjustly convicted protestors who were later pardoned. Chapter 5 connects post-LOCHNER era regulation of the economy by the federal government with a society that increasingly appreciated the need for such regulation and that groaned under the inequalities of an unfettered market; and Chapter 6 shows that American presidents have long respected the principle, based in the constitution, that executive power needs to be checked by other branches of the government in times of crisis even when the crises to which presidents respond are different from those in the past.
The American Supreme Court has practiced constitutional fidelity by interpreting constitutional clauses, such as the Equal Protection Clause, so as uphold reapportionment laws that respond to changing demography; this is the message of Chapter 7. The Court’s MIRANDA ruling is another example of constitutional fidelity, being an appropriate application of the Fifth [*437] Amendment in a setting where law enforcement is carried out in a decidedly different way than it was at the time of the constitution’s framing (Chapter 8). Final examples of constitutional fidelity include ROE v WADE, GRISWOLD v CONNECTICUT, and LAWRENCE v TEXAS, all of which are explained as appropriate and flexible applications of the constitution’s promise of liberty in light of contemporary social mores (Chapter 9). The book concludes with a chapter inviting us to apply constitutional fidelity in light of contemporary issues such as emerging technologies and the environment.
Chapters 3 through 9 are descriptively rich, and the facts of changing social attitudes and gradually evolving jurisprudence are undoubtedly accurate. Moreover, the suggestion that social movements have influenced judicial interpretations of the constitution is persuasively made with reference to many historical examples. So too is their claim that, in the real-world, judicial interpretation of the constitution is not simply a mechanical process of discerning original meanings, but is a combination of history, of judgment, and of responding to social contexts. Constitutional fidelity’s appreciation of the multi-faceted nature of actual constitutional interpretation is certainly one of the theory’s strengths. Indeed, as an account of how judges and others actually do interpret the constitution, constitutional fidelity is well-defended; and as an account of how Americans actually have interpreted the constitution throughout history, there is much to commend the theory. To reiterate, however, while Chapters 3 through 9 are compelling descriptively, Liu, Karlan, and Schroeder could do more to explain what normative lessons are to be drawn from these examples.
One other aspect of the book that should be noted is that the discussion throughout is focused exclusively on the American context. The only constitution referred to is the American one, and all of the legal examples are drawn from American jurisprudential history, likely lessening of the value of the book as a teaching tool in other national contexts. As well, the American focus of the book undermines constitutional fidelity’s status as a general theory of constitutional interpretation. Is it, for example, equally applicable in other social contexts where social movements do not serve liberal democratic ends? There are likely normative lessons to be learned from the book’s argument that could be applied in other contexts, but these applications would require work beyond that taken up in this volume.
In sum, KEEPING FAITH WITH THE CONSTITUTION provides a clearly written, succinct, and compelling analysis of the historical trajectory of American constitutional interpretation. It develops a panoramic view of jurisprudence that effectively ties together a wide variety of complex cases and decisions into a coherent whole. The thesis that many of America’s most cherished understandings of the constitution cannot be explained by Originalism, but only by a constitutional theory that recognizes the way in which evolving social norms affect constitutional interpretation, should secure wide agreement. The book’s shortcomings lie primarily in the comparatively little attention it gives to sustained philosophical argumentation for constitutional fidelity as a normative [*438] doctrine. As such, while this volume will likely leave philosophically-oriented lawyers and legal theorists wanting more, those who have more of an eye to the history and practice of American constitutional interpretation should find it very satisfying.
Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge, MA: Belknap Press.
BROWN v. BOARD OF EDUCATION, , 347 U.S. 483 (1954).
BRANDENBURG v. OHIO, 395 U.S. 444 (1969).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
REYNOLDS v. SIMS, 377 U.S. 533 (1964).
ROE v. WADE, 410 U.S. 113 (1973).
© Copyright 2011 by the author, Philip Shadd.