Vol. 4 No. 1 (January, 1994) pp. 7-9
THE CONSTITUTION OF JUDICIAL POWER by Sotirios A. Barber. The Johns Hopkins Press, 1993. 279pp. Cloth $25.95
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College
Prof. Barber has written one of the most intellectually serious, stimulating, and ingenious jurisprudential arguments I have read in quite some time. I say that as someone who does not share Barber's central premise that philosophy is essential to constitutional interpretation, and as one who doubts that philosophy necessarily leads teachers and critics to worry about the right things in constitutional law and politics. Yet, as unconvinced as I am of much of what he has to say, I am equally convinced that readers will be generally impressed with how Barber says it. Indeed, I expect to return to this engaged and engaging book again and again, to challenge myself to make better arguments about the purposes that ought to govern reading and writing about the Constitution.
The epistemological imperative that drives Barber's jurisprudence is moral realism: basically it is the idea that moral entities, like "justice," have a real existence. Barber argues that moral realism is embedded in the Constitution, and celebrates its appearance in the writings of Publius, John Marshall, and Ronald Dworkin in order to defend the thesis that an originalist interpretation of the Constitution requires fidelity to individual and minority rights that justifies, and even mandates, Warren Court-like judicial activism. Barber's animus is directed specifically against the New Right (e.g., Raoul Berger and Robert Bork), and more generally against elements of skepticism, relativism, antirationalism, and conventionalism wherever he finds them in constitutional commentary (e.g., in legal realism generally, and also in the writings of Alexander Bickel, Walter Berns, Michael Perry, Stanley Fish, and even in the work of Ronald Dworkin whom he otherwise takes up as an ally).
Barber intends to convince us that opposition to moral realism, individual and minority rights, and judicial activism is indefensible because that opposition cannot be justified successfully by the political philosophy of the founding, consistent and coherent theories of judicial review, or contemporary ethical theory. He also would have us see the opposition to his positions as a product of intellectually and morally degraded ethical theories that are inconsistent, incoherent, and just flat wrong when applied to the normative structure and content of the Constitution. Moral realism is also identified as the best philosophical defense for a liberal civic culture that teaches citizens to be open to the heterogeneity of differences of opinion, to commend themselves to the principle that differences are to be settled by reason, not force, and to aspire to search for political and moral truths in the same way as science teaches one to get closer to natural truths. These are obviously exceptionally ambitious, to say nothing of contentious, intentions, and the author, more often then not, is up to fulfilling them.
One of the great strengths of the inevitably abstract arguments made in defense of these intentions, and the criticisms or attacks (and make no mistake, these are sometimes attacks) against the opposition, is their accessibility. Barber's own arguments for moral realism and Constitutional interpretation are remarkable for their clarity, and readers will be readily able to assess them for their authoritativeness and for how effective they are against the claims of relativism, skepticism, and conventionalism.
Perhaps equally impressive is the internal logic of this work. Barber identifies this logic as "Socratic," and as I understand it as a model for applying moral realism, it requires the intellectual and moral commitment, to oneself and others, to read the Constitution as embodying The Good (my word, not his). This is a commitment to the principle that the Constitution embodies historically transcendent conceptions of rights and powers that are TRUE and that one MUST strive to imitate, but should not expect to replicate, in the contingent world of politics. We meet this commitment by accepting the challenge that every belief and opinion, even moral realism, has to be
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tested against the best versions of the truths of the Constitution we have at our disposal.
This commitment has an aesthetic beauty to it, not because I came away with a specific picture of the range of these Constitutional truths, but because the author's commitment to the values of consistency, coherence, and moral imagination is a noble, even brave, contrast to modernist, to say nothing of post- modernist, skepticism that, to some considerable extent, has undermined those values and the very idea that those engaged in Constitutional interpretation are part of a shared moral and political enterprise that requires self-reflection and self- constraint.
On the other hand, however beautiful this commitment may be, Barber's Socratic abstract claims lead to some problems. One of these concerns the role of philosophy in defense of moral realism and judicial activism. Barber contends that a Socratic approach shifts the burden of proof on to those who would deny the imperatives of a moral realistic reading of what the Constitution requires. And one manifestation of this shift is an hostility to history in the sense that it is always philosophy, and never history, that must have the last word (pp. 68, 200). This shift becomes worrisome when Barber's Publius -- much of which is familiar, but some of which arises out of Barber's "therapeutic" reconstruction of what Publius wrote (p. 49) -- turns out to be a defender of a judicial monopoly of power that "honor[s] individual and minority rights" (pp. 32, 40). Now, on its own terms I found Barber's Publius interesting and persuasive; yet I also think that Robert Burt's more historical (albeit mostly Madisonian) and more complicated Publius, in THE CONSTITUTION IN CONFLICT (1992), which is less enthusiastic about how much political sovereignty the Court deserves (Burt, p. 40), is just as plausible as Barber's rendition. Thus the problem: why does fidelity to the Constitution require me to choose a philosophical over an historical Publius as the basis for the truth about judicial activism? I, for one, do not have a positive answer to this question. I do know that pragmatic and consequentialist reasons are ruled out because Barber stipulates that Dworkin's jurisprudence "made the argument for moral philosophy so effectively that all sides should have accepted it as a commonplace by now" (p. 68). But those benighted souls who are either disinclined to take Dworkin or Barber's word for the superiority of moral philosophy, or who are inclined to think otherwise, are left, I think, with no other alternative but to learn to love philosophy, and thereby the Constitution, or to leave them both to those who do.
The potentially stipulative aspect of philosophy and moral realism recapitulates itself at two other levels as well. For example, Barber argues that in our polity, characterized as it is by conflicts over fundamental values, a commitment to the Constitution requires legal philosophers "to impute underlying values to a people despite their conflicts and in the face of historical change" (pp. 60-61). Barber recommends that these conflicts be viewed "as conflicting versions of some truly common good to which we all aspire, whether we know it or not (p. 108). I understand this commitment to fundamental values as an exhortation, and indeed I sometimes share in it. But I also am compelled to think about the well-argued and often poignant claims made by those who write about the law and politics of differences of gender, sexual, race, and class identity. These claims cast doubt on the search for moral unity and integration, however self-reflective it may be, because it is seen as a potentially inhumane and unjust exercise that sacrifices differences for unity. These claims give me pause about the extent to which that exhortation for truth, and the confidence in philosophy behind it, oversimplifies the complicated, and perhaps, tragic problems in constitutional law and politics. And since Barber does not address substantive issues of law and politics, it is impossible to say whether or not moral realism gives itself over to such simplifications or not.
At another level, there is the question of the audience for this Socratic approach to the Constitution that is led by philosophers. The "compulsion" behind moral realism, says Barber, is "to get to the bottom of the moral questions that
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trouble ordinary citizens" (p. 217). This idea of being a philosopher to one's fellow citizens (p. 188) is a noble one, with historical antecedents in both classical Greece and our own polity with Publius' Federalist Papers. But I wonder about such a role for a philosopher today, given what philosophy does and what ordinary citizens need. To his credit, Barber is alive to this question; he recalls Michael Walzer's warning about the gap between philosophical reflection and the practical choices of politics, but only to summarily dismiss it by saying that Walzer ought to have understood "ordinary prejudice" better by taking into account, from Barber's point of view, that nonacademic persons assume a difference between truth and convention.
Quite aside from what may be an uncharitable (and unjust?) dismissal of what Walzer understands and has done in his writing, those of us who read social scientific arguments, like McClosky and Brill on the dimensions of intolerance in this polity (1983), are likely to wonder what it means to say that "one's fellow citizens" hold to the difference between truth and convention when it comes to morality and politics. Indeed, one might wonder whether abstract talk about citizens' conceptions of truth and convention can really include persons outside the classrooms of the better undergraduate institutions, and whether the issues that trouble ordinary citizens, let alone their prejudices, are really on the Socratic agenda.
Of course, all the problems that I have raised here might well be attributed to my skepticism about the role of philosophy in constitutional interpretation. But then I have the comforting thought that perhaps even my skepticism is within both the letter and the spirit of Barber's argument. After all, what I have done is to raise doubts about where the Socratic approach takes me, but I have not rejected taking the trip. There can be but one Socrates, or an Aristotle; and the rest of us have to accept that we are a Cephalos, a Glaucon, an Adeimantus, or a Thrasymachus, and that means we do our best to follow a teacher who wants us to try to make ourselves better than we would otherwise be. The virtue of this book is that it challenges us to be more self- reflective academics, and it is a challenge well worth the taking. This is a delightful book.
Burt, Robert A. (1992). THE CONSTITUTION IN CONFLICT. Cambridge: Harvard University Press.
McClosky Herbert and Alida Brill. 1983. DIMENSIONS OF TOLERANCE. New York: Russell Sage Foundation.