A CONSTITUTION FOR ALL TIMES
by Pamela S. Karlan. Cambridge: The MIT Press, 2013. 183pp. Cloth $14.95. ISBN: 9780262019897.
Reviewed by Amanda Hollis-Brusky, Department of Politics, Pomona College. Email: amanda.hollis-brusky [at] pomona.edu.
Once upon a time, nearly every leading academic, lawyer, and judge believed in some version of the “living constitution”; that is, that the American constitution embodies broad values or principles, the meaning of which evolve according to novel social and economic conditions. This view was so uncontroversial, in fact, that liberals forgot how to defend it. Today, as the conservative counterrevolution in the law enters its third decade (Teles 2008; Southworth 2008; Hollis-Brusky 2011; 2013), liberals are being forced to articulate and defend their constitutional vision against a conservative judiciary and a powerful political movement that has made Originalism the new constitutional orthodoxy. Pamela S. Karlan’s A Constitution for All Times is the latest book in a series of strategic offensives launched by liberal scholars to reclaim the debate over constitutional interpretation – to resurrect and rebrand “living constitutionalism” as something that is politically palatable and resonant with ordinary Americans (see, e.g., Balkin and Siegel 2009; Chemerinsky 2010; Strauss 2010; Liu, Karlan, and Schroeder 2010; Balkin 2011).
Pamela S. Karlan is a formidable figure in American law and a leading liberal voice in the academy. Currently serving as the head of the Civil Rights Division of the Department of Justice, Karlan is a long-time professor at Stanford Law School and co-director of the Supreme Court Litigation Clinic. Her scholarly record is impressive. Along with her best-selling casebooks and textbooks on constitutional law, Karlan has authored or co-authored several dozen articles on everything from voting rights to criminal procedure to same sex marriage. Since 2010, she has also written a regular column for the Boston Review (“Karlan’s Court”). A CONSTITUTION FOR ALL TIMES is a collection of those bi-monthly columns. Though they were each written separately, Karlan asserts that when taken together these eighteen columns “lay out a coherent approach to thinking about constitutional law and the Court’s role in our democracy” (p.x). I am forced here (perhaps for the first time in my career) to disagree with Karlan. Because of its journalistic tone, episodic focus, and punctuated column-like structure, the book simply cannot deliver on this claim. Readers looking for a full-blown, scholarly treatise outlining a liberal approach to constitutional law and courts should look instead to KEEPING FAITH WITH THE CONSTITUTION (Liu, Karlan, and Schroeder 2010), THE LIVING CONSTITUTION (Strauss 2010) or LIVING ORIGINALISM (Balkin 2011). Still, there are several terrific insights embedded in A CONSTITUTION FOR ALL TIMES’ short, well-written, and accessible chapters that could be good fodder for classroom discussion when read alongside cases or other political [*284] science scholarship.
In the five columns composing Part I (“Originalism, Activism, and Constitutional Values”), Karlan recites the standard critique of Originalism – the constitution was never meant to be static (pp.4-7), Originalism is impossible to apply (p.8), its adherents use it selectively when it benefits their policy preferences and drop it when it does not (pp.9-17). But, as Justice Antonin Scalia reminded readers in his famous essay, “Originalism: the Lesser Evil,” critics of Originalism need to actually put forth a better alternative (O’Brien 2004, p.172). At several points in the book, Karlan gestures at an alternative jurisprudence that would privilege the principles of “liberty, equality, democracy, and opportunity for all” (pp.3, 10, 39, 169). This phrase seems to be short-hand for the theory of “constitutional fidelity” that Karlan and her co-authors develop in KEEPING FAITH WITH THE CONSTITUTION (see Liu, Karlan and Schroeder 2010, pp.1-52). There, as in this book, Karlan holds up the Supreme Court’s decision in BROWN V. BOARD OF EDUCATION (1954) as the touchstone of a liberal constitutional vision. As a political scientist, I found this fascinating. The things that make the BROWN decision appealing to Karlan et al. – its simplicity, overt moral authority, and its embrace of changing social circumstances – are, arguably, some of the same drivers of the waves of protracted resistance that followed BROWN. It would be interesting to put this part of Karlan’s book in dialogue with Gerald Rosenberg’s THE HOLLOW HOPE or even John Paul Stevens’ FIVE CHIEFS to help students think through the potential and pitfalls of modeling liberal jurisprudence after BROWN.
In Part II of the book (“The Supreme Court and the Democratic Process”) Karlan is at her best. In four chapters that cover BUSH V. GORE 2000), Watergate and its aftermath, corporations and campaign finance, and felon disenfranchisement, Karlan shows how the Supreme Court has influenced and shaped campaign finance, voting rights, and election law, which has in turn shaped politics, which has in turn shaped the composition of the Supreme Court, and so on. While this interdependence is old news to law and courts scholars, Karlan does a nice job of making it accessible through concrete cases and examples. In particular, I love the image she uses in the introduction to illustrate the relationship between the Court and the democratic process: “Like the two hands emerging from the sheet of paper to draw one another in M.C. Escher’s famous 1948 lithograph DRAWING HANDS, the Supreme Court emerges from the political process…even as its decisions fundamentally shape the possibilities and boundaries of that political process going forward” (p.xii). The themes Karlan addresses in these chapters offer multiple opportunities for engagement with political science. Because of the book’s popular focus and journalistic tone, however, Karlan does not engage with any scholarly literature. That being said, these chapters could be read alongside, for example, Gordon Silverstein’s LAW'S ALLURE or a range of Supreme Court cases dealing with the political process: the reapportionment cases, campaign finance cases, voter identification, and especially the Supreme Court’s recent decision on the Voting Rights Act, SHELBY COUNTY V. HOLDER (2013). [*285]
Part III of the book (“Reasoning Together About Our Rights”) is the longest and also, from my reading, the least thematically cohesive. Covering everything from criminal defendant rights, the debt ceiling and the Fourteenth Amendment, judicial activism (again), judicial appointments, race-conscious remedies, to the death penalty and campaign finance jurisprudence (again), these eight chapters are, Karlan explains, intended to illustrate that the constitution is “‘a layman’s document, not a lawyer’s contract’”(p.xiii). While this theme is not actually developed or borne out in the chapters themselves, it does seem to provide a raison d’ etre for the book and to justify its journalistic tone and focus. Because of this, it would be interesting to analyze A CONSTITUTION FOR ALL TIMES through the lens of “popular constitutionalism” (see, e.g., Tushnet 1999; Kramer 2004; Levinson 2011) and ask whether the motivation to take the Constitution out of the hands of lawyers and judges is sincere and theoretically motivated (consistent with the liberal or progressive project) or simply strategic (conservatives currently control the judiciary).
In closing, A CONSTITUTION FOR ALL TIMES should be read as part of a much broader, strategic campaign by liberals and progressives to reclaim the high ground in the battle over constitutional meaning and interpretation. While this book does not deliver on its promise to present a coherent constitutional vision, when read alongside KEEPING FAITH WITH THE CONSTITUTION (Liu, Karlan and Schroeder 2010), THE LIVING CONSTITUTION (Strauss 2010), LIVING ORIGINALISM (Balkin 2011) or THE CONSTITUTION IN 2020 (Balkin and Siegel 2009), readers will get a much better sense of the state of the liberal or progressive constitutional project. The book’s short, accessible chapters can also be productively paired with a variety of Supreme Court cases as well as political science scholarship to enrich classroom discussion.
Balkin, Jack. 2011. LIVING ORIGINALISM. New York: Belknap.
Balkin, Jack and Reva Siegel (ed). 2009. THE CONSTITUTION IN 2020. New York: Oxford.
Chemerinsky, Erwin. 2010. THE CONSERVATIVE ASSAULT ON THE CONSTITUTION. New York: Simon & Schuster.
Hollis-Brusky, Amanda. 2013. “It’s the Network: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court.” STUDIES IN LAW, POLITICS, AND SOCIETY, 61: 137-178.
Hollis-Brusky, Amanda. 2011. “Support Structures and Constitutional Change: Teles, Southworth and the Conservative Legal Movement.” LAW AND SOCIAL INQUIRY, 36 (2): 551-74.
Kramer, Larry. 2004. THE PEOPLE THEMSELVES. New York: Oxford University Press.
Levinson, Sanford. 2011. CONSTITUTIONAL FAITH. Princeton: Princeton University Press.
Liu, Goodwin, Pamela Karlan, and Christopher Schroeder. 2010. KEEPING FAITH WITH THE CONSTITUTION. [*286] New York: Oxford University Press.
O’Brien, David M. ed. 2004. JUDGES ON JUDGING. Washington, D.C.: Congressional Quarterly Press.
Rosenberg, Gerald. 2008. THE HOLLOW HOPE. Chicago: University of Chicago Press.
Silverstein, Gordon. 2009. LAW’S ALLURE. New York: Cambridge University Press.
Stevens, John Paul. 2011. FIVE CHIEFS. New York: Little, Brown.
Strauss, David. 2010. THE LIVING CONSTITUTION. New York: Oxford University Press.
Southworth, Ann. 2008. LAWYERS OF THE RIGHT: ROFESSIONALIZING THE CONSERVATIVE COALITION. Chicago: University of Chicago Press.
Teles, Steven. 2008. RISE OF THE CONSERVATIVE LEGAL MOVEMENT. Princeton: Princeton University Press.
Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.
BROWN V. BOARD OF EDUCATION, TOPEKA, 347 U.S. 483 (1965).
BUSH V. GORE, 531 U.S. 98 (2000).
SHELBY COUNTY V. HOLDER, 570 U.S. ____ (2013).
Copyright 2014 by Amanda Hollis-Brusky