Vol. 12 No. 6 (June 2002) pp. 260-264
CONSTITUTIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE by Sotirios A. Barber and Robert
P. George (Editors). Princeton University Press, 2001. 337 pages. Cloth $55.00. ISBN: 0-691-08868-3. Paper $22.95.
Reviewed by Terri Peretti, Department of Political Science, Santa Clara University.
The product of two conferences at Princeton University, this collection of fourteen essays from "the Princeton
group" of scholars challenges the dominance in constitutional studies of research that is court-centered and
behavioral. As a replacement for (or at least supplement to) the law professor's overriding concern with doctrine
and the political scientist's obsession with the judicial decision, CONSTITUTIONAL POLITICS offers a "civic-minded
concern" with "awaken[ing] a constitutionalist consciousness in its readers---to view themselves as potential
makers and changers of constitutions, as opposed to mere subjects of existing arrangements."
Although there is a great deal to admire in this book, empirical questions that could (and should) have been addressed
were not, and the central assumption---that constitutions in fact matter---was barely examined at all. Nonetheless,
I strongly recommend the book and hope that it attracts a broad audience and prompts a vigorous and varied response.
Each article tends to at least one of four aspects of constitutional politics: constitution making, doctrinal
development, constitutional maintenance, and constitutional change (with the latter two topics receiving the lion's
share of attention). Given the book's aim, it is surprising that only two chapters directly address the initial
question (i.e., Why bother with a constitution? What ends might a constitution serve?). The first, by Walter
Murphy, examines several alternatives to constitutional democracy and, in so doing, reminds us that whether to
adopt a constitution is itself a choice and not a simple one. Constitutional democracy has its virtues ("great
liberty against government" (p. 12) and a strong record with regard to peace and prosperity), but entails
risks as well (weak protection from private injustices and an impoverished civic culture). Suzette Hemberger takes
a narrower approach to the "Why a constitution" question and examines competing answers from the Founding.
She asks that we take more seriously the Federalists' concern for empowering (and not just restraining) government,
while keeping in mind the
Antifederalists' more radical vision of popular constitutionalism as "an exercise in the articulation of shared
values" and a limit on "what the government could do in the people's name" (p. 128). James Fleming's
inquiry regarding the nature and purpose of the U. S. Constitution tackles the Why question more indirectly. He
Ackerman's conclusion that the Constitution is "democratic first, rights-protecting second" simply because
it fails to entrench human rights, protecting them from popular revision through amendment as does
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the German Basic Law. He cleverly uses Ackerman's own "structural amendment" concept to argue that fundamental
rights such as religious freedom have been "structurally entrenched" through longstanding tradition and
practice. The absence of formal entrenchment cannot prove that our Constitution is not rights-foundationalist.
A key focus of this volume is constitutional maintenance. In his short reflective essay, Sotirios Barber uses
Aristotle, Publius, and Lincoln to echo the book's theme that "constitutional maintenance has less to do with
formal institutions than with the attitudes, skills, and material conditions for reaffirming the constitution as
effective means to the good society" (p. 166). For many of the authors, the central issue of constitutional
maintenance is who bears primary responsibility for authoritative interpretation. John Finn's outstanding discussion
of this issue offers two conceptions of the Constitution, each with distinctive implications for constitutional
maintenance and interpretive responsibility. The Juridic view regards the Constitution as law, which implies that
constitutional maintenance is primarily about interpretation, requiring the specialized skills of legal professionals.
While the "Juridic Constitution is a Constitution about law and for lawyers" (p. 48), the Civic Constitution
alternatively "finds its identity in its status as political creed" (p. 54). Its interpretation is,
accordingly, a "broadly democratic affair, the province of every citizen" (p. 58). In seeking to "reinvigorate"
this alternate conception, Finn criticizes judicial supremacy for decreasing the number of arenas in which constitutional
dialogue occurs and praises, as better-suited to the Civic Constitution, departmentalism (or "coequal review")
and Sunstein's notion of judicial
minimalization. In an interesting twist, Christopher Eisgruber reverses the relationship that Finn has posited,
arguing instead that notions about who should interpret the Constitution has implications for how the Constitution
is to be interpreted and what it means. He argues that the Court's "anxiety" about justifying judicial
supremacy has led it to distort constitutional meaning, including ignoring the powerful implications of the Fourteenth
Amendment both for federalism and Congressionally-enforced substantive rights. Like many of the authors, Eisgruber
then urges citizens to reject "legalistic governance" and the passive role the Court wishes to assign
them, becoming instead, as the Fourteenth Amendment intends, "selfconscious about the Constitution's character"
and committed "to the tumult of
justice-seeking constitutionalism" (pp. 85-6). Wayne Moore presents Frederick Douglass as precisely that sort
of citizen, acting as both "constitutional subject and author." Douglass invoked his own understanding
of the Constitution, based largely on the Preamble, and acted as a citizen despite official doctrine to the contrary.
Although Moore acknowledges Douglass's minimal (if not nonexistent) effect on official constitutional norms, he
insists that popular commitments to the Constitution's meaning ("unofficial practices") be considered
"as important components of the `law of the land' independently of whether they received official endorsement
or became parts of a broader social consensus" (p. 251).
Keith Whittington injects a welcome dose of realism into this discussion of judicial authority in constitutional
interpretation and maintenance. He argues that, regardless of our preferences, powerful incentives insure judicial
supremacy. For example, only "reconstructive" presidents
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who seek to "attack the collapsing regime" and "articulate the foundations of the new one"
(p. 271) are likely to challenge judicial authority to assign meaning to the Constitution, and these presidents
appear only during rare periods of realignment. Furthermore, although these assaults may weaken judicial independence,
"constitutionalism ... is not threatened [since t]he constitutional regime is reinvigorated through a wider
political debate over its content and its future" (p. 275). Challenges to judicial supremacy are, in any
case, infrequent since the interpretive authority of the Court serves the self-interests of the more commonly-occurring
"affiliated" and "preemptive" presidents. Judicial supremacy in constitutional interpretation
is thus a logical and "politically conditioned" outcome.
Four articles address the issue of constitutional citizenship, but indirectly, from a doctrinal perspective. For
example, several authors address the issue of how constitutional doctrine can help to produce the "right kind"
of citizen. Stephen Macedo defends those doctrines supporting separation of church and state, even (or especially)
when they marginalize those with extreme or "peculiar" religious beliefs. We have a right to our "partisanships"
and need only accommodate those
values and practices that support and further liberal attitudes. He, thus, asks us to see liberal constitutionalism
as "pervasively educative" and to recognize its "transformative" power to produce the "right
sort of civic culture" that supports our liberal political order. Sanford Levinson, in contrast, urges doctrinal
would prevent the marginalization of "self-consciously religious parents" and instead promote pluralism
in the public schools. He sees concessions like state aid to parochial schools and a moment of silence for students
to use as they wish as a small price to pay for the greater good of "achieving some kind of UNUM among the
PLURIBUS of American society" (p. 216). Levinson candidly admits that his proposal has "a trace of the
spider's web about it" (p. 215); he hopes to lure the children of evangelicals back into the public schools
and away from their parents' "foolish" and "pernicious" views. H. N. Hirsch rejects several
recent challenges to the "liberal orthodoxy" governing First Amendment thought, including arguments that
the free speech guarantee does not bar state efforts to eradicate hate speech (as race discrimination) and pornography
(as gender discrimination). He offers instead a "strong First Amendment" perspective which is "nonconsequentialist,"
recognizing that "even creeps have rights" (p. 234) and that free speech need not produce truth or other
social goods to be valuable and worth protecting. Instead, "[t]hinking and speaking freely is an essential
component of human freedom" (p. 235) and "conserv[ing] a capacity for making and remaking constitutions
both a good in itself and an essential of liberalism" (p. 223). Finally, instead of examining how constitutional
doctrine shapes citizen attitudes and behavior, Robert George asks how "morally conscientious citizens"
can respond to illegitimate judicial decisions like ROE v. WADE. In failing to protect the unborn, he argues,
Court was "doubly unjust," both "usurping democratic authority" and "assaulting"
the norm of equality protected in the Constitution and inherent in democracy itself. In response, citizens can
and should "resist," but only through "constitutionally and morally pure means" (p. 322).
Many of the contributors advocate a strong role for citizens in shaping and reshaping our constitutional values.
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I found to be two of the weaker essays in this volume, Jeffrey Tulis and Mark Brandon address more extreme forms
of constitutional change---constitutional revolution and constitutional failure. Tulis uses an unusual and, in
my view, strained and unpersuasive account of the Constitution and THE FEDERALIST to conclude that our "incoherent"
Constitution seeks to preserve the option of liberal revolution, yet simultaneously renders it impossible. Brandon
offers readers the
interesting observation that constitutional failure is both "a theoretical necessity" and "an empirical
reality" (p. 299): to constrain power successfully, we must be able to verify when the Constitution has failed
to do so. Less clearly and effectively made is his point that the movement away from "natural law constitutionalism"
has not, as might be expected, made constitutional failure less likely; constitutional failure, though existing
in several complex forms, is still possible.
Despite an occasional quibble (e.g., the polemical nature of the George essay, the editors' odd characterization
of the Tulis and Hemberger articles), I was very impressed with the book. The writing is intelligent, the thematic
focus clear and consistent, and the opportunities for intellectual progress significant. I especially
appreciate the promise that the "constitutional politics" concept holds for law professors and social
scientists to communicate and work together effectively, an infrequent event which I believe has had disastrous
consequences for normative constitutional scholarship.
Fulfilling that promise, however, requires more attention to the book's largely unexamined assumption that constitutions
indeed matter. After all, countries such as England prove that a written constitution is not necessary for stable
democracy, and emerging democracies have adopted the American constitutional model with limited success. Furthermore,
the selective application of the Constitution in the U. S. is an undisputed fact; some provisions are ignored (e.g.,
Amendment, the privileges and immunities clauses), and others are interpreted in dramatically different ways by
different generations (e.g., due process of law, the commerce clause). Uniting these scholars is a "commitment
... not to any particular constitution but to constitutionalism itself" (p. 2). Left untended is the task
persuading readers to share in that commitment, to believe that constitution making and constitutional maintenance
are necessary or desirable.
My other objection is the book's inattention to empirical questions and existing empirical knowledge. (Given that
this is my typical complaint, it perhaps says more about me than the book, however). Although the introduction
promises "the normative, conceptual, and empirical study of constitutional politics" (p. 1), the scholarship
that follows is far more conceptual than empirical. That is especially apparent (and ultimately unsatisfying)
with regard to the issue of constitutional citizenship raised by many of the authors (particularly Finn, Eisgruber,
Moore, and George). They criticize the current "judicial monopoly" in constitutional interpretation
and instead advocate a strong citizen role in articulating, challenging, and changing constitutional meaning. However,
political scientists have
effectively challenged the notion of judicial supremacy and independence. Additionally, the alternative---the
"how" of constitutional citizenship, how this democratic constitutional enterprise can, does, and should
work--is not very fully sketched. Overlooked are such concrete questions as: how, in fact, do citizens
conceive of the
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Constitution? Do they understand it, and can (and how do) they learn from it and change its content, meaning,
and authority? What are the prerequisites of constitutional citizenship, and do they exist? Are current mechanisms
of popular constitutionalism adequate or inadequate and, if inadequate, how must they be changed? Too many of
the essays are simply "conceptual" and "exploratory," failing to canvass available empirical
evidence about popular knowledge and attitudes regarding the Court and Constitution and about the interactive and
politically-constrained nature of constitutional development.
Despite these concerns, I found the essays to be uniformly lively and thought-provoking. Accordingly, I recommend
the book with enthusiasm and hope that it draws a broad and varied audience. The questions it raises would benefit
from the attention of a diverse group of scholars---law professors, constitutional historians, and political scientists
from both behavioral and institutionalist perspectives.
Copyright 2002 by the author, Terri Peretti.