ISSN 1062-7421
Vol. 10 No. 2 (February 2000) pp. 96-99.

CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS by Larry Alexander (Editor). Cambridge: Cambridge University Press, 1998. 319 pp. Cloth $59.95. ISBN 0-521-48293-3

Reviewed by Kenneth Einar Himma, Department of Philosophy, Seattle Pacific University.

Constitutionalist theory is motivated by two principal concerns. The first is to determine what makes a constitution legitimate. The second is to provide an account of how courts should interpret a constitution. These two issues are, of course, related. The best principles for interpreting a constitution will undoubtedly preserve, respect, and enhance its legitimacy.

As is appropriate given its pervasive influence, originalism forms the point of departure for the essays in CONSTITUTIONALISM. Originalism comes in a variety of flavors, but its central tenets are roughly as follows. The constitution is, in some sense, a piece of enacted law and hence derives its moral authority, at least in part, from its authors. Since the moral authority of a constitution derives from the persons responsible for its enactment, courts should interpret the constitution in a way that respects THEIR intentions and understandings.

The idea that a legal norm might be morally binding because of its source is very natural with statutory and common law. In a legitimate legal system, subjects are morally bound by a valid legal norm because it has an authoritative source in a legislature or court. But, as Frank Michelman points out in "Constitutional Authorship," the extension of this idea to constitutions is problematic because "a social practice of legal validation must ultimately ground itself in something that is not itself a validated law in terms of the system's own ultimate standards of legal validation" (p. 73).

It is important not to miss the force of this idea. The authority of a legislature or court derives from the legitimacy of the constitution that establishes it. But then the question arises: where do the authors of the constitution get THEIR authority? Legitimate authority is usually associated with the existence of a moral right to rule. And it is implausible to think that the authors of a constitution have a moral right to rule no matter what the content of the constitution looks like.

However, the idea that the legitimacy of a constitution turns, at least in part, on its content jeopardizes originalist theories of constitutional interpretation. For if the legitimacy of a constitution is a function of its content and if, as seems obvious, the constitution (morally) should be interpreted in a manner that preserves its legitimacy, then it should be interpreted as having a content that makes it morally legitimate. And such an interpretation may well be at a distance from what was intended, understood, and contemplated by the authors.

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Richard S. Kay attempts a defense of originalism that avoids this line of objection. In "American Constitutionalism," Kay argues that the moral point of a constitution is to protect autonomy from the dangers inherent in public coercion by authorizing its use only within certain preexisting limits-that is, to "keep government in order" (p. 16). Since the rules that limit state coercion must have "some fixed verbal formulation" (p. 27), autonomy can reliably be protected by a constitution only if the
constituent rules are interpreted according to the original understanding. As Kay puts the point, "What commands obedience is not a mere set of words, but the
expression of an intentional-historical act" (p. 31).

Nevertheless, while it might be true a constitution must be given "some fixed verbal formulation," not any formulation will do. There are many ways of limiting public coercion but not all of them give rise to moral legitimacy. What matters, at least in part, is the content of the relevant norms. If those norms are sufficiently unjust, it doesn't matter that, as a historical fact, they have been given a fixed verbal formulation. But if this is correct, then one can argue, as Ronald Dworkin would, that
courts should interpret those fixed formulations with an eye towards making those formulations express the morally best norms possible-a thesis that renders the intentions and understandings of the framers of secondary importance.

Though Michael Perry generally regards original understanding as authoritative in identifying constitutional norms, he argues, in "What is 'the Constitution'?," that the Court may play an active role in "specifying" indeterminate constitutional norms. A norm is indeterminate, on Perry's view, when people agree on the applicable constitutional norm but reasonably disagree on how it applies to the case. In such circumstances, it can be legitimate for the court to flesh out the content of the norm in a way that renders it determinate. According to Perry, "The challenge of specifying an indeterminate constitutional norm, then, is the challenge of deciding
how best to achieve, how best to 'instantiate,' in the context of a particular conflict, the political-moral value (or values) at the heart of the norm" (p. 113).

This is a smaller step away from originalism than may first appear. First, even when the relevant constitutional norms are indeterminate, it is original understanding that determines the identity of those norms. Second, the court's creative role is limited to making the norm determinate by applying it in a way that achieves the value at the heart of the norm-which is presumably also constrained by original understanding. This does not mean courts must flesh out the content of an indeterminate norm in any given context by doing what the framers would do in a similar case. It does posit original understanding as a constraint on judicial creativity in shaping
indeterminate norms - and is hence vulnerable to the same objections as Kay's view.

Jed Rubenfeld proposes a different solution in "Legitimacy and Interpretation." Rubenfeld wants to show how a text enacted by past democratic majorities can exert legitimate authority over future democratic majorities. Rubenfeld argues that the ideal of democratic self-government is realized only when the proper subject of such government "lays down and lives up to its own commitments over time" (p. 216). And, on Rubenfeld's view, the proper subject is the "people, considered as a collective and temporally extended agent" (p. 214). Since past majorities and future

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majorities are part of the same "People," the commitments of the former-as commitments of the People-constitute the commitments of the latter. For this reason, the commitments of a past democratic majority can legitimately bind a future democratic majority.

The problem, however, is that it is the existence of a legitimate constitution that unifies a collection of individuals as one People capable of collective commitments that can be enforced against those individuals. If, as seems reasonable, the existence of a People qua agent presupposes the existence of a legitimate constitution, then Rubenfeld's view that the legitimacy of the constitution can be explained in terms of some pre-existing commitment on the part of the People seems caught in a circle.

In contrast to these theorists, Joseph Raz rejects originalist views altogether. Raz believes authority is legitimate only to the extent that subjects are more likely to comply with the demands of right reason by following the authority's directives than by following their own judgments about what right reason requires. Raz oncedes that considerations of stability and continuity (as opposed to original understanding) are of great importance in constitutional interpretation. Nonetheless, his view
that constitutional legitimacy necessarily derives from its content ensures that he will afford a more creative role to judges in shaping constitutional norms. Indeed, on his view, "[m]odification of the law is called for either when it is undetermined on the issue the court has to decide or when it is less than adequate" (p. 183).

As a practical theory of interpretation, this doesn't tell us much about when and how courts should exercise their constitutional discretion. Lawrence Sager's view offers guidance on these points. According to Sager, constitutional text and practice is authoritative insofar as it is restricted to alleviating the concerns that "would [most] urgently worry persons joining a political community" (p. 248). Constitutional decisions, then, must ensure that (1) the interests of each person are considered equally, (2) the processes of government are open and fair, (3) each person has an opportunity to thrive economically, and (4) each person has the freedom to choose her own way of life. The semantic and textual intentions of the framers bind the court only to the extent that they conform to the notions of justice reflected in these concerns.

Content-based constitutionalist theories, such as these, are vulnerable to a powerful objection. As Larry Alexander points out in his helpful introduction, constitutional interpretation on these theories really amounts to "constitutional change or revolution" (p. 8). But the idea that judges have moral authority to effect substantial changes in a constitution seems patently undemocratic. On Alexander's view, then, democratic ideals require that the text of the constitution be interpreted by courts in a manner that respects the understandings and intentions of those who agreed to it.

However, as Jeremy Waldron's contribution makes clear, originalism is no less vulnerable to the democratic objection than content-based theories. Waldron challenges the very legitimacy of American-style judicial review, arguing it can't be justified in terms of a national precommitment. Waldron doesn't deny that a person can legitimately precommit to a constraint on her behavior; thus, for example, Joe, who plans on drinking at a party, might give his car keys to a friend

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with instructions not to return them. But he denies that precommitment is an adequate model for situations where there is disagreement about the content of the constraints themselves, as occurs with constitutional rights. As Waldron puts it, such a model is "ludicrously problematic in cases where the form of precommitment is to assign the decision procedurally to another body, whose members are just as torn and conflicted about the issues as the members of the first body were" (p. 285).

It is true that the constitution can't be seen as the same kind of precommitment Joe makes to keep from driving drunk, but this isn't the only kind of legitimate precommitment. Typically, a contract between two parties involves a mutual precommitment to assign decisions about disputed matters to the courts. And here it is important to note that, at the highest appellate level, the members of the court may be "just as torn and conflicted about the issue" as the parties are. Nonetheless, that doesn't obviously render the individual commitments any less legitimate or autonomous. Thus, the mere fact that constitutions can't be seen as one kind of legitimate precommitment doesn't mean they can be seen as another.

Although the essays in CONSTITUTIONALISM leave room for objections, they are also invaluable in staking out the most important positions in contemporary constitutionalism. As such, each of the contributions is indispensable reading for the specialist and generalist alike.

Copyright 2000 by the author.