Review of Constitutional Interpretation:

Stephen B. Presser, Modern Age (forthcoming 2001).

Jurisprudence in this country has been in big trouble since about 1931. In that year, a disgruntled lawyer named Jerome Frank published a book called Law and the Modern Mind, in which he argued, essentially, that the rule of law was a delusion. Profoundly influenced by Freudian psychology, Frank claimed that the belief that there was firm content to legal and constitutional rules was an artifact of humankind’s never-ending search for an infallible father, a search begun in childhood, and ongoing for most of us, until the grave. For some, claimed Frank, religious dogma filled the void of an imperfect parent, and for others it was the law. Frank’s wish was for lawyers and judges to follow the teachings of the man Frank believed to be the only “adult” jurist, Oliver Wendell Holmes, Jr., universally acknowledged as the greatest sage of American law. Holmes wrote, in 1881, that the life of the law was not “logic,” but “experience,” and that the law pretty nearly corresponded to what was felt “convenient” at the time, that judges changed law to meet the needs of society.

Through Frank and an assortment of other legal academics and judges active in the thirties, forties, and fifties, with frequent invocation of the authority of Holmes, a movement called “legal realism” took hold in the American legal academy. Soon it became dominant, indeed so dominant that by the late sixties, Frank’s book was required reading, even at the most elite bastions of legal training. First-year students matriculating at Harvard Law School in the fall of 1968, for example, were told to read Law and the Modern Mind the summer before their legal education began. Many never recovered.

Inspired by legal realism, the United States Supreme Court, from 1937, when it began to uphold the expansive federal governmental programs of the second New Deal, on through the decisions of the Warren Court in the fifties and sixties, essentially rewrote the United States Constitution. This was done to accommodate the Court’s particular social vision, which it believed to be in tune with the times. For the first time, the Supreme Court began to dictate to the states and localities what could and could not be done in education, in criminal procedure, in church-state relations, in legislative redistricting, and, eventually, even in the matter of abortion. By the turn of the twentieth century, the Supreme Court had worked a radical change in the nature of American government. Black-robed officials in Washington habitually restricted what state and federal governments could do, in a manner that would have been anathema to the Constitution’s framers, pursuant to the Court’s idea of what was “convenient” for American society.

The framers believed that the federal government was one of limited and enumerated powers, with the lion’s share of law-making to be exercised by the states and localities. The framers also believed that it was the job of the courts to interpret, rather than to make the law. But Holmes and Frank believed that it was inevitably the job of the judge to legislate, and by the beginning of the twenty-first century, both these central maxims of American Constitutionalism – federalism and the separation of powers -- had been all but obliterated.

Still, some dissenters lingered, and occasionally a bold academic would remind his or her colleagues or the courts that the original plan had been different. Finally, in the waning years of the century, the Supreme Court, headed by Chief Justice Rehnquist, began to reverse the tendency toward aggregation of power in the central government, and at least two of the Justices on the Supreme Court, Antonin Scalia and Clarence Thomas, began repeatedly, and perhaps a bit more stridently, to remind their colleagues and the public that it was not the job of Justices to make law, and their task should be simply to effectuate the original understanding of the Constitution and laws.

In 2000, when then Governor George W. Bush was running for President, he actually promised that if elected he would appoint more judges like Scalia and Thomas, and that it would be his aim to put people on the bench who would understand that it was their job to interpret rather than to make law. The tremors in the law schools, and among the chattering classes generally, were nearly volcanic. When, in mid-2001, Vermont’s Senator Jeffords threw control of the Senate into the hands of the Democrats by leaving the Republicans, Democrat Senators scheduled hearings to try to frustrate Bush’s judicial appointment plans, claiming that he was wrongly injecting “ideology” into his jurisprudential selections. Thus it was that those who simply defended the original understanding of separation of powers -- that judges were not supposed to make law – and those who defended the original understanding of federalism – that the state and local governments were to be primary, with the federal role a limited one – were branded as ideologues. As this is written, a series of hearings are underway in the United States Senate, organized by Sen. Schumer (D., N.Y.), to try to reestablish the hegemony of Holmes and Frank, and to make clear that it was fundamentally wrong to try to place a majority of judges like Scalia and Thomas on the federal bench .

In the same way that Raoul Berger serendipitously produced a tome on impeachment when proceedings had begun in the House against Richard Nixon, now comes Keith Whittington, an assistant professor of politics at Princeton University, with two volumes which ought to be required reading for the White House and the members of the United States Senate, as well as all thoughtful teachers of Constitutional Law. Whittington has, simply stated, written two of the best books on constitutional exegesis in a generation. He has also gone quite far to topple the assumptions on which the work of Holmes and Frank and their followers in the academy rest. These two volumes, in a sense, are devoted to two different topics, one jurisprudence and one politics. Constitutional Interpretation explores how judges ought to render decisions based on our fundamental document, and Constitutional Construction explores how politicians have been engaged in the effort to give the document meaning. Both present a blueprint for future action, and the effort undertaken here is like nothing any other scholar has done in memory.

For me, as a law professor, occasional polemicist, and sometime testifier before assorted Congressional Committees the “Constitutional Interpretation” volume was of more interest, since, for reasons that are a bit obscure, most of us teaching in American law schools are concerned almost exclusively with what judges do, and, in particular, what the nine men and women sitting on the Supreme Court have to say. An obscene number of innocent trees have been shredded to make up the pages of law review articles and books on Constitutional interpretation. Much of their sap was shed in vain, because very little that has been written on this topic is of lasting value. For the past sixty years, in the academy, the principal effort has been, usually with a nod toward Holmes, to figure out ways of justifying what the late New Deal Court, what the Warren Court, and what the Burger and early Rehnquist courts did in expansively reading the Constitution, consistently with the “living constitution” views most commonly associated with Chief Justice Warren and William Brennan.

Brennan and Warren, and their acolytes, who comprised a very large majority of American law professors, as well as virtually all media commentators on the Supreme Court, believed that the social, political, and economic change since the time of the framers in America had been so profound, that there was a need broadly to read the Constitution to accommodate that change. Proponents of the “living constitution,” in short, had found a way to Amend the document, in the manner indicated earlier in this review, without the need for the cumbersome Article V process. One of them, Bruce Ackerman, even candidly indicated his praise for amending the constitution simply on the basis of popular acclaim, thus nicely defeating the very purpose of the written constitution itself – to render fundamental law regarding property rights, contracts, and federal-state relations immune from alteration because of popular passions.

Prior to the thirties, however, the academic consensus and the lawyerly consensus was that the only permissible means of Constitutional interpretation was pursuant to the framers “original understanding” or their “original intent.” Occasionally a brave soul would try to make that case again, as, for example Raoul Berger did in several books. Most of the academy hooted at this, and, when Robert Bork’s name was placed in nomination for the United States Supreme Court, and when he made clear his belief in this “original intent” school of Constitutional jurisprudence, he was subjected to some of the most vitriolic spew ever seen on the Senate floor. Pursuant to the practice now known as Borking, Senator Kennedy stated:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

This was clearly errant nonsense, but it was effective, and the Borkers prevented the first Borkee from getting to the Court. Borking-like treatment has been the fate of those who dared dissent from the “living constitution” orthodoxy, and it takes an act of considerable courage to fly in the face of Holmes and Frank and to expose the fallacies of their form of constitutional adjudication. This Keith Whittington has done, in a manner at once comprehensive, elegant, and brilliant.

Constitutional Interpretation considers most of the interpretative strategies that have been offered by legal academics, principally as a means of justifying the judicial expansions of the Constitution over the last seventy years, and finds them all wanting. Whittington is fair to these other theorists, and those new to Constitutional jurisprudence will find Whittington a sensitive guide to the work in the field over the last couple of decades. Still, Whittington manages thoroughly to eviscerate the theoretical pretensions of “living constitution” scholars as prominent and diverse as John Hart Ely, Ronald Dworkin, Stanley Fish, Michael Perry and Cass Sunstein, and even those of “rights-oriented” or “pragmatic” analysts such as Richard Epstein and Richard Posner.

But where Whittington shimmers is in his comprehensive defense and exposition of the theory of originalism. At one level all Whittington is doing is reminding us of the classic defense of originalist jurisprudence which Alexander Hamilton deployed in Federalist 78, that when judges interpreted the Constitution as originally intended, all they were doing was effectuating the will of the sovereign people. And if this was all that Whittington did, it would be useful, since Hamilton’s wisdom is as valuable now as it was then, but Whittington offers more. He carefully and thoroughly obliterates the critics of originalism, by demonstrating the flimsy foundation in structuralism, deconstruction, hermeneutics, and assorted other suspect forms of post-modernism on which their criticism, and on which “legal realism” itself, is founded. He then painstakingly rebuilds the case for originalism, grounding it in a modern defense of democratic politics, a nod toward Burkean prudence, and an appreciation for the choices regarding separation of powers, federalism, and the protection of property and contract rights made by the framers. Some of this is plain old American common sense, but some of it is also a demonstration of a subtle grasp of American, English, and Western European linguistic, political, and ideological theory that leaves the reader nearly breathless.

One can quibble with some parts of Whittington’s analysis, as for example one might with regard to his giving fairly short shrift to theories of natural law, which probably informed late eighteenth century American constitutional jurisprudence to a greater extent than Whittington seems prepared to allow, but this is probably the usual reviewer’s dilemma of the author under review having written his rather than the reviewers’ book. Whittington, like Bork, believes that it is appropriate to interpret the Constitution based only on what made it into the writing itself. For me, that is a perspective that slights a bit the pervasive nature of what Samuel Chase in Calder v. Bull called “those great principles of Republican government” that circumscribe any legislature whether or not they are written down. Still, both Whittington and Bork can be forgiven, because their prescriptions will still function in a manner that restricts judicial excesses, and at least preserves pristine most of our constitutional values.

In Constitutional Constructions Whittington is also making the case for popular sovereignty. In that companion volume to Constitutional Interpretation, he demonstrates how the popular branches, the legislature and the executive, have effectively helped to mold the Constitution over time. He shows how state legislators, House members, Senators, and Presidents have been able to take advantage of the Constitution’s purposefully plastic character, consistently with the enduring structures of the Constitution, and, in particular, with the doctrine of separation of powers. In the course of thoughtful examinations of the impeachment of Supreme Court Justice Samuel Chase (a topic, by the way, that only a few scholars have treated in anything but a superficial manner), the struggle over nullification and the tariff in the early nineteenth century, the impeachment of Andrew Johnson, and the late twentieth-century creation of an “imperial presidency,” particularly during the tenure of Richard Nixon, Whittington makes clear that the Constitution’s accommodation of social, political, and economic change can be accomplished without law-making by the Courts. Constitutional Interpretation shows how judicial law-making violates democratic theory, and Constitutional Construction reminds us of our tradition of democratic practice.

A serious dose of Whittington might work as a decent antidote to Holmes and Frank, and to the “living constitution” for rising lawyers and academics. If more Senators and their staffers were required to read these two books, the threat to an independent judiciary -- which is probably more real now than it has been for three quarters of a century -- might be reduced and American liberty and the original understanding of the Constitution better preserved.

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