by Norman Dorsen with Catharine DeJulio (eds). New York: New York University Press, 2013. 385pp. Cloth $50.00. ISBN: 978-0-8147-7012-2.
Reviewed by Thomas G. Walker, Department of Political Science, Emory University.
In 1960 Justice Hugo Black delivered the first of the James Madison Lectures at New York University School of Law. Since that time the annual Madison lectures have become one of the nation’s foremost intellectual events focusing on civil liberties and the Constitution. THE EMBATTLED CONSTITUTION preserves in one volume the text of the eleven Madison lectures that were presented between 2001 and 2011. It follows the publication of three similarly purposed volumes: THE GREAT RIGHTS (1963), THE EVOLVING CONSTITUTION (1987), and THE UNPREDICTABLE CONSTITUTION (2002).
NYU constitutional law professor Norman Dorsen edited THE EMBATTLED CONSTITUTION. Dorsen’s career as a scholar and participant in the civil liberties field spans more than a half century. He is well known for his leadership in the American Civil Liberties Union, the Society of American Law Teachers, the United States Association of Constitutional Law, and the Lawyers Committee for Human Rights. Dorsen has administered the Madison Lecture Series since 1977 and previously edited THE EVOLVING CONSTITUTION and THE UNPREDICTABLE CONSTITUTION.
Consistent with the general practice of the Madison lectures, the eleven presentations included in this volume were delivered by prominent jurists. The roster includes one Supreme Court justice (Stephen Breyer) and ten current or former members of the United States Courts of Appeals.
The volume presents the lectures chronologically. No organizational structure is imposed. Aside from Dorsen’s six-page introduction, no commentary is provided. Each of the lectures, therefore, stands on its own. But the lectures are sufficiently strong expressions of opinion, scholarship, and criticism that they independently advance compelling ideas and proposals for change. Although each of the jurists delivered a lecture without reference to those presentations performed previously or those still to come, there are some common threads among them.
Two of the lectures examine the careers of earlier jurists to illustrate the traits of high quality judging. The First Circuit’s Michael Boudin (2006 Madison lecture) offers the long judicial service of Second Circuit Judge Henry Friendly as an example of outstanding judging. Boudin argues that the power and quality of Friendly’s work made him the most admired legal scholar and craftsman of his generation, dominating his era like Learned Hand had done previously. Friendly’s well-deserved reputation was built on a foundation of scholarship, integrity of analysis, practicality, and balanced judgment. In a similar vein, former Tenth Circuit judge Robert Henry (2010) touts Justice John [*20] Marshall Harlan’s judicial approach. He focuses on Harlan’s special view of originalism and how Harlan believed that the words of the Constitution require reference to history and tradition for proper interpretation and application to contemporary questions.
Three of the lectures might be categorized as focusing on the methodology of judging. Justice Stephen Breyer (2001) sees active and constant citizen participation in our democracy to be one of the objectives of the Constitution. He claims that this goal can be better achieved if judges would place greater emphasis on the consequences of their rulings rather than focus so heavily on a “legalist” approach that emphasizes language, history, tradition, and precedent. The Seventh Circuit’s Diane Wood (2004) argues for the rejection of an originalist and literalist approach to constitutional interpretation. Instead, she supports the adoption of a dynamic method that allows the Constitution to adapt and evolve along with changing societal conditions while maintaining allegiance to the document’s basic values. Robert Katzman (2011) of the Second Circuit tackles the problem of statutory interpretation and the lack of mutual understanding between legislatures and judges. Judges are regularly faced with the problem of interpreting statutes that lack the degree of precision that would make the law’s meaning clear. Katzman’s lecture provides a strong argument for increased usage of legislative histories as a guide to such interpretive efforts.
Issues posing problems for the judiciary and for the nation more generally are the focus of three of the lectures. The Second Circuit’s Guido Calabresi (2002) examines changes in the relationship between federal and state courts. He finds that basic distinctions between the two judiciaries have blurred. One primary reason for this has been the tendency of Congress to add to the federal penal code offenses that traditionally have been the business of state criminal law. Another is the increase in diversity cases requiring federal courts to interpret state law. J. Harvie Wilkinson III (2007) discusses the growing problems of partisanship and polarization in the United States. He suggests that the judiciary can help ameliorate the problem by taking such measures as respecting judicial restraint, being sparing in what is constitutionalized, honoring the constitutional principles that value nationalism, and being neutral on divisive issues such as race and religion. Finally, Judge Blane Michael (2009) examines the effectiveness of the Fourth Amendment as a protector of privacy rights against the growing intrusiveness of the electronic age. He argues that to safeguard the right against unreasonable searches and seizures it is necessary to abandon the impractical and cramped approach of applying common law principles of the Founding period. Rather, Michael urges following Justice Brandeis’ dissent in OLMSTEAD V. UNITED STATES (1928) using the formative history of the Fourth Amendment as a guide for applying the Constitution to contemporary conditions.
Three of the lectures feature sharp criticisms of recent trends in constitutional interpretation. Marsha Berzon (2008) expresses her opposition to the growing reluctance of courts to hear cases that present direct [*21] constitutional causes of action for equitable relief and damages that are not otherwise authorized by statute. She argues that these cases need to be adjudicated as a means of safeguarding the Constitution’s structural principles and civil liberty protections. Pierre Leval (2005) chronicles the increasing tendency for judges to treat dicta as binding precedent. When judges do so, he argues, they engage in judicial lawmaking inconsistent with the powers granted to the courts by the Constitution and violate principles of common sense and sound judicial practice. Finally, Judge David Tatel (2003) launches a pointed criticism of the Supreme Court’s decision making in the school desegregation cases of BOARD OF EDUCATION V. DOWELL (1991) and MISSOURI V. JENKINS (1995). Tatel’s attack is not necessarily based on the outcome of these two cases, but on the Court’s failure to explain fully and openly its rationale for following (or not) binding precedent provided by BROWN V. BOARD OF EDUCATION (1954) and its progeny. The result, Tatel argues, are two decisions that are flawed as acts of judging.
As we might expect from a group of experienced judges, the lectures are well written and logically presented. Without exception, each lecture makes a cogent argument, commonly presented with commitment and passion. The essays encourage the reader to think about the process of judging as well as the important issues facing the judiciary.
This book has the specific and somewhat narrow purpose of preserving in one volume important addresses presented by accomplished judges. Consistent with that purpose, the book has certain limitations. First, because the book lacks any central theme or message it is not an authoritative volume on any particular subject. Second, there is little new in this collection. Each of the lectures was delivered publicly and then published in the NEW YORK UNIVERSITY LAW REVIEW. Third, the opinions expressed in the lectures should not be taken as representative of the views of federal judges more generally. Of the eleven authors, nine received their judicial appointments from President Bill Clinton. They join one Ronald Reagan appointee and one George H.W. Bush selection. Not surprisingly, the volume is sprinkled with criticisms of the modes of constitutional interpretation often espoused by more conservative judges (e.g., original intent, constitutional principles expressed by the Founders, literal interpretation).
The unique value of the book is also clear, especially when we consider it as the fourth volume in the James Madison lecture series. The participating judges had the rather uncommon luxury of expressing their views on laws and legal institutions freed from the normal constraints of writing opinions in the course of deciding specific cases. The subjects they selected – be they identifying judicial role models, examining the methodology of judging, or examining problems facing the judiciary – represent issues, problems, and reforms of great importance to them. In addition to the value of their individual efforts, the four volumes that preserve the Madison lectures provide an interesting insight into the evolving concerns of American jurists over past half century. [*22]
Cahn, Edmund. 1963. THE GREAT RIGHTS. MacMillan Company.
Dorsen, Norman. 1987. THE EVOLVING CONSTITUTION: ESSAYS ON THE BILL OF RIGHTS AND THE U.S. SUPREME COURT. Wesleyan.
Dorsen, Norman. 2002. THE UNPREDICTABLE CONSTITUTION. NYU Press.
BOARD OF EDUCATION OF OKLAHOMA CITY V. DOWELL, 498 U.S. 237 (1991).
MISSOURI V. JENKINS, 515 U.S. 70 (1995).
OLMSTEAD V. UNITED STATES, 277 U.S. 438 (1928).
Copyright 2014 by the Author, Thomas G. Walker.