Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.
Defending Congress and the Constitution is a refreshing, accessible, and iconoclastic book. Louis Fisher, one of the most respected authorities on constitutional history and the separation of powers, channels his considerable expertise toward two related goals—puncturing the myth of judicial supremacy and reminding readers of the many ways in which Congress has protected and defended individual liberties and rights. In systematic fashion, Fisher presents a vigorous historical and normative defense of coordinate constitutional construction and labels the notion that the American constitutional system was intended to make the courts infallible “judicial idolatry” (p.18).
Despite its title, Fisher’s book is neither unswerving in its defense of Congress nor subtle in critiquing the Supreme Court. Indeed, one of Fisher’s main lines of argument is that Congress has willingly abdicated a number of its duties and, as a consequence, has unduly strengthened the judiciary’s grip on constitutional interpretation. In the opening pages, Fisher contends that “A single surrender [by Congress], however, modest, sets a precedent for the next. Power abdicated is not likely to be recovered” (p.2). Whether such capitulations are the result of Congress providing for expedited review of constitutionally-debatable legislation rather than grappling with those constitutional questions itself (pp.215-216), exhibiting a willingness to defer to the “expertise” of others (p.272), or demurring from criticizing the Court’s decisions (p.321), Fisher repeatedly emphasizes that members of Congress have a duty to protect the institution’s power. Indeed, he insists members violate their oaths of office when they fail to do so (p.3).
Chapter 2, entitled “Unpacking Marbury,” offers Fisher’s account of the classic 1803 case and its implications. Importantly, in addition to reviewing and assessing the fundamentals of the decision itself, the chapter reminds readers that John Marshall’s Court actually utilized judicial review to legitimize and ratify the actions of Congress and the President in areas such as the Commerce and Necessary and Proper Clauses (p.43). Fisher also proffers considerable historical evidence to buttress his conclusion that “The framers never intended to vest in the Court final authority over the meaning of the Constitution” (p.45). Given recent and impending inter-branch disagreements over issues such as campaign finance reform and health care, Fisher issues a prescient reminder to politicians and citizens alike that the resolution of such matters cannot and, in his view, “should not be the special province of a small group of persons who happen to occupy the Supreme Court bench” (p.47).
Fisher’s purpose in Chapter 3 is to point to a number of issues throughout American history that might well have been – but ultimately were not – settled by judicial intervention. Also nested within this chapter is the notion (see, e.g., Rosenberg 2008) that the Supreme Court’s influence on society is subject to a number of constraints (pp.51-52). Matters including the President’s veto power, presidential signing statements, and the politics of federal appointment are presented here. One of Fisher’s points in advancing these issues, as well as conflicts dealing with covert spending and foreign affairs, is that the elected branches have defined the contours of many such issues for themselves without explication from the courts. More specifically, he suggests ways in which
Congress can use its institutional powers to prevail in inter-branch disagreements such as these.
Chapter 4 continues this theme by tackling issues of federalism, and ultimately concludes that “both the doctrine and practice of federalism have been shaped far more by the elected branches than by the judiciary” (p. 75). Here, Fisher traces the evolution of federal-state relations from McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) to Lopez (1995), Morrison (2000), and Raich (2005). One of the most effective points in this chapter comes when Fisher discusses the Supreme Court’s muddled signals on federalism issues in recent decades. After stating that “we defer to the Court not because it decides a case but because its reasoning is persuasive” (p.81), he suggests that the modern Court has not met those requisite burdens of clarity and persuasiveness (p.101). Fisher puts this point somewhat more provocatively later in the book: “If the Court wants to ‘say what the law is,’ it has a duty to speak with greater clarity” (p.167).
Chapters 5 and 6 discuss the role of Congress, the President, and the Supreme Court in protecting civil rights and religious liberties. Fisher notes the judiciary’s limitations (see Rosenberg 2008) in catalyzing social and legal change in the immediate aftermath of Brown v. Board of Education (1954) and instead concludes that African American civil rights were vindicated through the elected branches of government (p.120). He chronicles efforts by the political branches to rectify adverse Supreme Court decisions in the areas of race (Scott v. Sanford 1857) and gender (Bradwell v. State of Illinois 1873) discrimination. Additionally, he seizes on the reality that, even when the Court did manage to support equality, it did not always do so for the noblest of reasons (Muller v. Oregon 1908). Similarly, in Chapter 6, Fisher refuses to credit the Court for finding the error of its ways in religious free exercise cases such as Minersville School District v. Gobitis (1940). To the contrary, in his view, the real credit goes to those who refused to accept the Court’s decision as authoritative (p.151).
In Chapters 7 and 8, Fisher turns to more institutional powers of investigation, oversight, and budgetary authority. For example, he provides a comprehensive account of the Jay Treaty and the disputes it engendered surrounding access to certain presidential documents in the late 1700s. In doing so, Fisher makes clear that the idea of executive privilege was hardly a novel one before the Supreme Court considered it in United States v. Nixon (1974). Further, examples from the Nixon White House, the Iran-Contra scandal, and George W. Bush’s presidency illustrate the inter-branch give-and-take that may be involved with obtaining congressional testimony from White House officials. Once again, Fisher stresses the comparative advantages of Congress in these battles by reminding readers of the institutional tools it has at its disposal to secure presidential acquiescence (pp.197-198). Discussions of Chadha (1983) and the legislative veto, budgetary impoundment, the Gramm-Rudman Act, and the Line Item Veto Act round out these chapters.
Chapter 9’s discussion of national security policy lies at the heart of Defending Congress and the Constitution. This is the area in which Louis Fisher’s scholarly writings (Fisher 2003) would prove to be so controversial (see Chapter 10). Chapter 9 makes the case that the Constitution’s Framers sought to avoid executive wars and, as such, anticipated that Congress would have a significant influence over foreign and defense policy (p.235). Indeed, Fisher’s fundamental disagreement with those espousing absolutist visions of executive war power, most notably John Yoo and Jay Bybee, pervades the book. In contrast to the “sole-organ doctrine” advocated by these individuals, Fisher asserts that “the framers recognized only two sources of constitutional power: enumerated and implied” (p.247). He is deeply critical of both the doctrine of inherent power and Justice Sutherland’s majority opinion in the Curtiss-Wright (1936) case. In Chapter 9 Fisher argues that this perspective, which he contends rests on a mistaken and/or dishonest view of history, has produced several unconstitutional wars. It has also helped to facilitate, in Fisher’s view, a regrettable abdication of congressional responsibility over foreign and defense policy.
While the final chapter examines aspects of the analytical support system available to members of Congress, its central purpose is to convey the end of the author’s tenure at the Congressional Research Service (CRS). Though Fisher’s position on the Iraq War (Fisher 2003) is discussed in some detail, as is his ultimate transfer from CRS to the Law Library, the Chapter’s broader point is that policies of expert “neutrality” that were adopted in 2004 did not benefit Congress and were not consistent with “nonpartisan, objective, professional analysis” (p.292). For readers unfamiliar with Dr. Fisher’s writings and the CRS policy of neutrality, Chapter 10 provides a fascinating, almost Orwellian account of that story.
I thoroughly enjoyed Defending Congress and the Constitution. It represents a comprehensive synthesis of the ways in which the branches have engaged in coordinate constitutional construction, and it exposes readers to an impressive depth of historical analysis. The book is also even-handed in that, while it defends Congress in many ways, it does not absolve Congress for failing to protect some of its own institutional prerogatives. Although I came away feeling that Chapter 10 would probably have been even more powerful had it been limited to Dr. Fisher’s conflict with the CRS (and had it excluded the sections on the Government Accountability Office and Congressional Budget Office), many other readers will surely disagree with that assessment.
This book is appropriately dedicated to the late Senator Robert Byrd, perhaps the most prominent defender of Congress’s institutional power in the modern era. Louis Fisher is certainly an advocate in that tradition; indeed, the book’s title is as autobiographical as its thesis is provocative and insightful.
Fisher, Louis. 2003. “Deciding on War with Iraq: Institutional Failures.” Political Science Quarterly 118: 389-410.
Rosenberg, Gerald N. 2008. The Hollow Hope: Can Courts Bring About Social Change? 2nd Edition. Chicago: University of Chicago Press.CASES CITED
Bradwell v. State of Illinois (1873) 83 U.S. 130.
Brown v. Board of Education (1954) 347 U.S. 483.
Gibbons v. Ogden (1824) 22 U.S. 1.
Gonzalez v. Raich (2005) 545 U.S. 1.
INS v. Chadha (1983) 462 U.S. 919.
McCulloch v. Maryland (1819) 17 U.S. 316.
Minersville School District v. Gobitis (1940) 310 U.S. 586.
Muller v. Oregon (1908) 208 U.S. 412.
Scott v. Sanford (1857) 60 U.S. 393.
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).
United States v. Lopez (1995) 514 U.S. 549.
United States v. Morrison (2000) 529 U.S. 598.
United States v. Nixon (1974) 418 U.S. 683.
© Copyright 2012 by the author, Brett W. Curry.