by Gary L. McDowell. New York: Cambridge University Press, 2010. 428pp. Hardback. $99.00/£60.00. ISBN: 9780521192897. Paperback. $32.99/£20.99. ISBN: 9780521140911. eBook. $26.00. ISBN: 9780511922145.
Reviewed by Stephen M. Feldman, Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. Email: sfeldman [at] uwyo.edu.
THE LANGUAGE OF LAW AND THE FOUNDATIONS OF AMERICAN CONSTITUTIONALISM, by Gary L. McDowell, is a difficult book to review. On the one hand, it is a brilliant history, meticulously researched, but on the other hand, it is marred by its blatant political goal. One might say that McDowell, the Tyler Haynes Interdisciplinary Chair of Leadership Studies, Political Science, and Law at the University of Richmond, has written a wonderful book that nonetheless falls far short of accomplishing its objective.
McDowell seeks to describe the history of originalism as an interpretive approach to the American Constitution. From his perspective, this history demonstrates that originalism rests on a moral foundation: in a democracy, where the people are sovereign, originalism is the only judicial method in constitutional cases that can avoid arbitrariness and tyranny. Whereas many other defenders of originalism have sought to justify it pursuant to philosophical or theoretical arguments, McDowell largely aims to justify it through history. He traces the development of originalism stretching over more than two centuries. In McDowell’s hands, Thomas Hobbes, Joseph Story, and a host of others all share one consistent outlook: originalism. Hobbes, Story, and the others maintain that legislators and the like, such as constitutional framers, choose their words to communicate specific ideas. Good and receptive readers, such as certain Supreme Court justices, attempt to read a written text so as to glean the author’s intentions. When interpretation is done well, then the language of the law directly communicates the ideas from the mind of the writer to the mind of the reader.
The great strength of THE LANGUAGE OF LAW lies in the details. McDowell provides close readings not only of luminaries such as Story but also of lesser lights such as Giles Jacob and Sir Fortunatus Dwarris. For many of the luminaries, in particular, McDowell offers up interesting and sometimes surprising quotations suggestive of an originalist approach. For example, McDowell mines several sources to reveal John Marshall invoking “the intention of the framers” (p.312) and “the mind of the Convention” (p.313). Likewise, Marshall is shown saying that the “great object of language … is to communicate the intention of him who speaks” (p.323). In a similar vein, McDowell quotes Story stating that “the ‘first and fundamental rule in … interpretation’ is to discern the ‘intention of the parties’” (p.362) and that the “Constitution is … to have a fixed, [*501] uniform, permanent construction” (p.363).
All this is well and good, but THE LANGUAGE OF LAW still is riddled with weaknesses. Even with the close readings of the various writers, one sometimes senses that McDowell has skewed the evidence or at least ignored compelling alternative viewpoints. For instance, after McDowell presents Story as an originalist committed to static constitutional meaning, he argues that Christopher Columbus Langdell, who became the first dean of Harvard Law School in 1870, ushered in a postCivil War jurisprudential approach that would “lead to the mistaken notion that the Constitution is nothing more than what judges have to say about it” (p.35). McDowell fails to confront the weight of other scholarly descriptions of Story and Langdell. Karl Llewellyn and Grant Gilmore described Story’s method of judicial decision as the “Grand Style” because Story emphasized an instrumental and pragmatic approach to the law (Llewellyn 1960, p.36; Gilmore 1977, pp.12, 39). Meanwhile, Langdell is typically described as a rigid formalist who conceived of judicial decision making as “mechanical” (Pound 1908, p.605; Feldman 2000, p.109). So keen to reduce all preCivil War jurists and legal scholars into originalists and to blame Langdell and the legal professoriate that he spawned for promoting arbitrary decision making, McDowell too readily shaves away the countervailing historical evidence and interpretations.
John Marshall provides a telling example. THE LANGUAGE OF LAW describes him as a leading light in McDowell’s pantheon of originalists. Yet, few constitutional scholars would characterize Marshall’s famous opinion in MCCULLOCH V. MARYLAND as a model of originalism. Philip Bobbitt has argued that judges can draw on six “modalities of argument” to decide constitutional cases legitimately: “historical (relying on the intentions of the framers and ratifiers of the Constitution); textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary ‘man on the street’); structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); doctrinal (applying rules generated by precedent); ethical (deriving rules from those moral commitments of the American ethos that are reflected in the Constitution); and prudential (seeking to balance the costs and benefits of a particular rule)” (Bobbitt 1991, p.1213). Marshall draws on at least four and perhaps five of these modalities in his McCulloch opinion alone. For McDowell to fit Marshall into the originalist box requires several powerful shoves and a couple of bloody slices.
Metaphors aside, how does McDowell force Marshall and others all into the same originalist box? First, McDowell uses the categorization, “originalism,” to describe antebellum jurists and scholars, even though originalism is a politically charged term used in today’s interpretive battles. It was not a term that Marshall, Story, and other antebellum jurists would have used. Whenever Marshall emphasizes the constitutional text or the framers’ intentions, McDowell implicitly declares, ‘Aha! Marshall must be an originalist.’ But I do not know of a single avowed nonoriginalist who asserts that constitutional interpreters should ignore the text and framers’ intentions; rather, nonoriginalists, like Bobbitt, [*502] maintain that sometimes interpreters should look to additional sources of or guides toward constitutional meaning. In other words, the fact that Marshall relies on the text and framers’ intentions does not make him either originalist or nonoriginalist.
Second, McDowell uses the crassest scare terminology to describe those who reject originalism. In the introductory chapter, McDowell suggests that opponents of originalism believe a judge should “substitute his own moral judgment for the considered moral judgments of the legislator or the Founder as expressed in the written law” (p.3). Likewise, nonoriginalists and other supporters of the “Warren Court’s activism” maintain “that judges should redefine the meaning of the Constitution” (p.3). They believe judges have “unlimited power” to engage in “a moral discourse unattached to the constitutional text and divorced from the intentions that lie behind the document itself” (p.45). For McDowell, the opposite of originalism is judicial “arbitrariness” (pp.4, 395). Wow! Marshall had better be an originalist; otherwise, we would have to toss him into the pit with this group of perfidious nonoriginalist snakes.
Third, McDowell elides a distinction between ‘old originalism’ and ‘new originalism.’ Old originalism (or just plain ‘originalism’) directs judges to examine the constitutional text and the framers’ intentions. It became a predominant conservative interpretive theory during the 1970s and 1980s. For instance, the early Robert Bork argued that the Supreme Court should enforce “specified rights [that] text or history show the framers actually to have intended [to protect] and which are capable of being translated into principled rules” (Bork 1971, p.17). In response to sharp criticism of this interpretive approach, however, conservatives developed a new originalism, which seeks to identify the original public meaning of the constitutional text but avoids inquiring into the framers’ subjective intentions. As the later Bork explained, “All that counts is how the words used in the Constitution would have been understood at the time” (Bork 1990, p.144). Throughout much of THE LANGUAGE OF LAW, McDowell appears to support old originalism; he repeatedly quotes Marshall and others as invoking “the intention of the framers” (p.312). Indeed, McDowell occasionally seems to twist the language of a quotation to support old originalism. Marshall is quoted as follows: “the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense and to have intended what they said” (p.324). To me, if this passage supports any type of originalism, it is new originalism – focus on what the words in the text meant – yet, McDowell insists this passage means an interpreter must seek to “discern the original intention” (p.324). Needless to say, I was surprised when McDowell suddenly suggests a few pages later that Marshall was a new originalist. Marshall, McDowell now says, never attempted to discover the subjective intentions or “personal views of the lawgivers,” but instead quested after their “objective intention” (p.331). Thus, the interpreter should focus on the original meaning of the “words alone” (p.324). “Whatever the imperfections,” McDowell writes, “the language of the law remained the most reliable guide to revealing the framers’ true intention and [*503] original meaning” (p.324). Well, which is it, old or new originalism? If McDowell equates the two, he stands separate from many other conservative theorists and needs to justify his position. At a minimum, McDowell should have been clearer throughout the book when referencing the framers’ intentions. Was he referring to objective intentions (an oxymoronic concept, by the way), subjective intentions, or both?
Fourth, McDowell simplifies originalist interpretation so that it appears apolitical. An unexamined ironic conundrum lies curled at the heart of the book. McDowell insists that originalism and the language of law provide a necessary bulwark against anarchy and terror. Following the language of the law and the framers’ intentions is a prerequisite to civilized society. But, as McDowell’s own discussions reveal, originalism leads to indeterminate conclusions in at least some cases. That is, two self proclaimed originalists can reach opposed positions. Why is that? Because politics influences interpretation, even originalist interpretation. As an increasing number of legal scholars and political scientists recognize today, law and politics are inherently intertwined (Friedman 2009; Gillman 1993; Powe 2009; Feldman 2005). This viewpoint does not mean that law is capricious or totally subjective; it does mean that legal decisions are always partly political. But McDowell can never admit as much. If he did, then from his perspective, originalism would spiral into the whirlpool of arbitrariness that he so fears. To avoid this catastrophe, McDowell must accuse one of the two (disagreeing) would-be originalists of being an imposter. McDowell’s discussion of SCOTT V. SANDFORD provides one illustration (another more recent example would be DISTRICT OF COLUMBIA V. HELLER, in which the majority and dissent offered opposed originalist readings of the second amendment). In Dred Scott, Chief Justice Roger Taney wrote the majority opinion holding that African Americans were not citizens and that Congress lacked the power to restrict slavery. As McDowell explains, “Taney insisted that his decision rested on the Constitution’s ‘true intent and meaning when it was adopted’” (p.381). But Justice Benjamin Robbins Curtis dissented, reasoning that Taney’s interpretation of the Constitution was “‘purely political’” (p.383). Curtis seized the originalist mantle for himself. He claimed to follow “‘a strict interpretation of the Constitution’” to a conclusion opposed to that of the majority (p.383). What does McDowell say about this originalist disagreement? Taney was a fraud or, at best, an ersatz originalist who introduced “government by judiciary” by imposing his “personal views of justice” (pp.384-5). McDowell cannot admit that politics might have influenced both Taney’s and Curtis’s readings of the Constitution because McDowell fears that if he did so, then constitutional interpretation would be rendered arbitrary. Remarkably, then, McDowell must ignore the degree to which politics often seemed to shape Marshall’s opinions. Is there any Supreme Court decision that is more overtly political than MARBURY V. MADISON? Jim O’Fallon put it simply: “MARBURY remains a central text of American politics” (O’Fallon 1992, p.259; McCloskey 1960, p.40).
In conclusion, McDowell’s blatant political effort to support originalism [*504] inevitably deflects the readers’ attention from the quality of his scholarship. Nonetheless, I suspect that THE LANGUAGE OF THE LAW will be well received by conservatives. McDowell will, one might say, successfully preach to the choir. While most conservative scholars support originalism with philosophical or theoretical arguments, McDowell provides historical fodder that many conservatives surely will appropriate to bolster their arguments – even if McDowell’s confounding of the old and new originalisms might flummox some otherwise sympathetic readers. Ultimately, though, for McDowell to sift so meticulously through the historical materials yet to reach such a univocal understanding of history on a topic as complex as constitutional interpretation is perplexing. Perhaps, this only shows that politics influences all interpreters of texts, jurists and scholars alike.
Bobbitt, Philip. 1991. CONSTITUTIONAL INTERPRETATION. Oxford: B. Blackwell.
Bork, Robert H. 1971. “Neutral Principles and Some First Amendment Problems.” INDIANA LAW JOURNAL 47:1.
Bork, Robert. 1990. THE TEMPTING OF AMERICA. New York: Free Press.
Feldman, Stephen M. 2000. AMERICAN LEGAL THOUGHT FROM PREMODERNISM TO POSTMODERNISM: AN INTELLECTUAL VOYAGE. Chicago: University of Chicago Press.
Feldman, Stephen M. 2005. “The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making.” LAW & SOCIAL INQUIRY 30:89.
Friedman, Barry. 2009. THE WILL OF THE PEOPLE. New York: Farrarr, Straus & Giroux.
Gillman, Howard. 1993. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.
Gilmore, Grant. 1977. THE AGES OF AMERICAN LAW. New Haven: Yale University Press.
Llewellyn, Karl. 1960. THE COMMON LAW TRADITION. Boston: Little, Brown.
McCloskey, Robert G. 1960. THE AMERICAN SUPREME COURT. Chicago: University of Chicago Press.
O'Fallon, James M. 1992. “Marbury.” STANFORD LAW REVIEW 44:219.
Pound, Roscoe. 1908. “Mechanical Jurisprudence.” COLUMBIA LAW REVIEW 8:605.
Powe, Lucas A. 2009. THE SUPREME COURT AND THE AMERICAN ELITE, 1789-2008. Cambridge: Harvard University Press.
DISTRICT OF COLUMBIA v. HELLER, 128 S. Ct. 2783 (2008).
MARBURY v. MADISON, 5 U.S. (1 Cranch) 137 (1803).
MCCULLOCH v. MARYLAND, 17 U.S. (4 Wheat.) 316 (1819).
SCOTT v. SANDFORD, 60 U.S. (19 How.) 393 (1857).
© Copyright 2011 by the author, Stephen M. Feldman.