THE FLEXIBLE CONSTITUTION
by Sean Wilson. Lanham, MD: Lexington Books, 2012. 236pp. Cloth $85.00 ISBN 978-0739178157
Reviewed by Dennis Coyle, Department of Politics, The Catholic University of America.
Yes, another book on constitutional theory. Sometimes it seems that books promising the key to understanding constitutional meaning appear as frequently as books on Lincoln or History Channel documentaries on World War II. Thankfully, The Flexible Constitution does not just follow well-trodden paths. It is most definitely not a thick historical tome scouring a faded landscape for relics of constitutional meaning in the intimate thoughts of designated founders or obscure post-revolutionary social practices. Nor is it a complex treatise of moral philosophy seeking to prove beyond doubt that sophisticated thinking coincidentally leads to doctrinal conclusions that match the author’s policy preferences. Nor is it a case-laden text showing that Supreme Court jurisprudence is – mirabile dictu – coherently rooted in precedent.
Professor Wilson begins by dismissing the familar Philip Bobbitt typology of forms of legal reasoning – historicism, doctrinalism and so on – and turns to a seemingly surprising source of legal enlightenment: Ludwig Wittgenstein, the 20th-century philosopher of language and logic. For Wilson, elaborating constitutional meaning is all about the text, and thus we benefit most from turning to those who are most serious and insightful about the meaning of words and the function of language. Hence, Wittgenstein. What he teaches us – as channeled by Wilson – is that a plain-language text such as the U.S. Constitution prescribes meaning and direction only in the general way that language works in everyday life. We converse using varying meanings of words, without a prior specification of precise definitions. Agreement on meaning is never precise because words connote related families of meanings and are constantly evolving as they are applied in new situations and comprehended by different persons. Language is both a tool and product of culture.
Because the Constitution is a purely positivist document in Wilson’s view, and no different in kind from other forms of positive law, interpretation demands careful attention to the words themselves. As Wilson repeats throughout the book, if constitutional authors wanted to bind us to anything else, they should have put it in the text. But Wilson is no simple dictionary-toting textualist. He finds in Wittgenstein a more sophisticated understanding of the development and role of language, emphasizing that a word captures a family of related concepts or things and evolves along with our experiences. The good judge develops a sophisticated sense of how to integrate awareness of larger phenomena while remaining true to the words. This skill cannot be reduced to a science, and thus Wilson prefers Wittgenstein’s notion of an aesthetic, and refers to the adept practitioner as a connoisseur. [*629]
One might quibble over whether this terminology is appropriate for legal reasoning and whether Wittgenstein himself would have characterized it in this way, as presumably a good legal opinion involves more than artistry. But applying unusual terms – as Wilson is wont to do – does challenge the reader to rethink the underlying phenomena, and surely there is a significant element of art in skillful judging.
After rather provocative introductory chapters, Wilson promises to clarify what is out of bounds and what properly guides the good judge in the latter chapters of the first half of the book, but does not provide any reassuring specificity. Perhaps this is to be expected, as nuance and sophistication are more the hallmarks of the Wilsonian judge. But given the boldness of the author’s statements about the originality and power of his approach, the reader may expect something more. It would have made for intriguing debate – and perhaps a more significant contribution – if Wilson had suggested more specific acceptable interpretations of contested clauses. He does not elaborate a particular vision of, say, equal protection or due process or even freedom of speech, leaving that for the connoisseurs. His stated boundaries seem rather small or evident even to a non-Wittgenstein audience, such as that “domestic violence” does not refer to spousal abuse and that “corruption of blood” is not about fiddling with what is in the veins (p.83). And devoting several paragraphs to arguing that the term “age” may be subject to varying interpretations will not reduce any uneasiness about the efficacy of Wilson’s approach.
Wilson may be less troubled by the lack of a clear interpretive direction than the reader, as it seems his primary goal, to paraphrase Khrushchev’s message to the West, is to bury originalism. With that safely interred, the field is cleared for “connoisseurisme,” one might say. Regarding the interminable debate over the historical meaning of law, Wilson says, “I wrote this book because I desperately wanted to see this conversation end” (p.180). That prospect has a certain allure for anyone who has struggled through the lengthy dueling originalisms of cases such as District of Columbia v. Heller, but The Flexible Constitution is not likely to silence originalists.
At least no one can accuse Professor Wilson of being tentative or obscure. He states his positions forthrightly and clearly, and expects the good reader will follow. Following some amusing self-deprecating prefatory remarks, he launches a page of “conclusions” (p.xxi). “Those who read this book and understand it properly,” he writes, “will be left with three conclusions.” Well, there you go. By implication, any reader (and presumably reviewer) who fails to reach the proper conclusions simply has not understood the book. This puts the onus on the reader to accept the author’s argument, rather than on the author to convince the skeptical reader or leaving room for a reader to reach surprising and interesting conclusions at variance with the author’s. Definitely no postmodern vagueness here.
Wilson’s first designated reader conclusion is that constitutional originalism can’t work “without also changing what the act of legislation is as a behavior” (p.xxi, emphasis in original). Wilson repeats variants of this claim [*630] early and often. American legal culture is positivistic and the Constitution was written and subject to a formal approval process just like any other type of positive law. As such it should be treated the same: the words matter, not some hidden intent, meaning or historical background. This is a quite defensible position, but a reader who sees the Constitution as fundamentally different in character than ordinary positive law is not likely to be persuaded.
History is not banned from Wilson’s playing field; it simply does not enjoy a privileged position. The onus is on originalists to demonstrate that their approach is superior to all other approaches to constitutional meaning “for reasons other than history,” according to the second conclusion. But a reader would conclude this only if he agrees that a plain-language constitution gives no a priori preference to history. This depends on treating the constitution as mere legislation, in which greater direction can only be provided by greater specification in the document itself. Anyone who questions the first “conclusion” will not be easily sold on the second.
The third conclusion/premise is that a constitutional judgment is “an artisan judgment, not a statement of fact.” This strikes me as the least contentious of Wilson’s conclusions, and evident to any sympathetic reader of judicial opinions. Immersion in Wittgenstein is not required, and thus this conclusion may be a less-unique contribution than Wilson contends.
The book may not be quite the “original work in legal theory” that the author seeks to present (p.xvii). At times he seems to be needlessly picking fights. Clearly originalists won’t be hanging out in his salon, but otherwise the guidance he provides for judges fits rather comfortably with influential norms of interpretation. The judge should make a culturally appropriate choice while also being attentive to courts as institutions; the direction provided by law, legal norms and training; and coherence with prior choices (pp.94-96). Although Wilson dismisses Bobbit’s list of interpretive modes, the end result seems surprisingly similar. (Wilson acknowledges a reviewer of the manuscript made this point.) The Flexible Constitution thus seems less revolutionary than Wilson may hope, but more compatible with existing orientations.
Wilson’s revolutionary aspirations carry over into the structure of the manuscript. It is highly divided into short sections more in the spirit of a rigorous philosophical text than the usual treatise on constitutional interpretation. He even invents own citation system, although he abandoned a “convoluted system of notation” that only his daughter liked (p.xx).
Wilson acknowledges he struggled with the organization of the book, which is not likely to keep the reader up late turning pages. (Note to publisher: Larger, less serif-ridden text would be easier on aging professorial eyes.) There is little narrative structure, and a reader can start and stop most anywhere, picking morsels here and there to ponder and digest. It is essentially two separate works: the first elaborating Wilson’s application of Wittgenstein to plain-language texts such as the Constitution, and the second a lengthy rejection of [*631] originalism. Wilson himself says the two halves were initially reversed, and there doesn’t seem to be a strong case for any particular order. With the key points unveiled at the beginning and repeated throughout, this is not a cliff-hanger.
Wilson is never shy about stating his position strongly, and acknowledges that John Brigham helped him see that his tone “on occasion was too authoritative, not leaving enough to the reader” (p.xix). An assertive tone remains throughout, which be off-putting to some readers.
Wilson’s task – ridding the world of originalism – would be easier if the circumstances that gave birth to the Constitution were more straightforward. Had the American Revolution been truly revolutionary, obliterating an old order and creating a new, it might have produced a committee to draft a truly founding document, from which all institutions and practices would follow. In that case first would be the Word, and the Word would be God (or at least a revolutionary directorate), and all would follow from the Word. But the founding was long and complex, a jumbled mix of positivism and pre-existing transcendent values, of happenstance and rational design, of old habits and new forms. There were state constitutions, the common law, established political practices and the time-worn “rights of Englishmen.” What we regard as The Constitution was put forward as a fix for the dysfunctional Articles of Confederation. Is the text itself, with its amendments, sufficient to understand what was put in place or what it stands for today? Perhaps, but hardly as simple a conclusion as Wilson would wish, or the literature on interpretation would be mercifully less voluminous.
The first half of the book on plain-meaning text is the most original, and I would hope Wilson develops this in further work. I found this relevant to an entirely different area I am delving into on cross-cultural meanings of political words. Likely there are courses on language and logic and such where the book would be a good fit, but a book titled The Flexible Constitution might not even be noticed by professors in these fields.
Given the heavy emphasis on formal analysis of language rather than specifically constitutional interpretation, it’s hard to see a wide readership and course use of the book in law and courts courses in political science or law schools. On the other hand, it provides ideal fodder for a student research paper or a faculty conference presentation, and the Lego-block manner of its construction makes for many concise statements and short passages that are easily excised and incorporated without fatally distorting their meaning. Some authors are frustrating impossible to encapsulate in an excerpt; this is not the case for Professor Wilson.
Although I’m not persuaded the book delivers on its promises, struggling to shape a review – to fairly present the author’s design while seeking to articulate what is problematic about it – was vastly more stimulating than the usual review assignment, and ultimately that may the sign of a good book. Another saving grace of The Flexible Constitution may be its defense of the art and skill of judging itself. And that, alas, is welcomed in these politicized times when the very idea that a judge might [*632] make a connoisseur judgment may seem preposterous to both right and left, to populists and social scientists, journalists and politicians. Wilson’s book reminds us that although meanings may not always be clearly determined, law and language are both liberating and constraining, and we are not left simply with the arbitrary imposition of will masquerading as judging. Unchained from originalism by desire or necessity, artful attention to culture, meaning and reason can craft decisions and opinions that help us navigate the rocky shoals of a large, contentious, changing nation as persons and as a polity. Public life – the stuff of constitutionalism – is not all politics or predestination. In the end, perhaps it does all begin with the Word.
Copyright 2013 by the Author, Dennis Coyle