From The Law and Politics Book Review

Vol. 8 No. 11 (November 1998) pp. 414-417.


A LIVING CONSTITUTION OR FUNDAMENTAL LAW? AMERICAN CONSTITUTIONALISM IN HISTORICAL PERSPECTIVE by Herman Belz. Lanham, Maryland: Rowman & Littlefield Publishers, Inc., 1998. 277 pp. Cloth $58.00. Paper $22.95. ISBN 0-8476-8643-4.


Reviewed by Tom Keck, Department of Political Science, University of Oklahoma. E-mail:


Herman Belz has been writing influential works in constitutional history for several decades now, and he has here collected nine of his previously published essays, along with new introductory and concluding chapters. The previously published essays, which appeared between 1969 and 1994 in a variety of history and political science journals and edited volumes, address a wide range of topics in constitutional history, including the founding; the rise and decline of "constitutional realism" during the gilded age, the Progressive era, and the Cold War; "the New Left attack on constitutionalism" during the 1960s; and the debates over constitutional history in the 1980s. The central organizing theme in these essays is what Belz characterizes as a cyclical struggle between written and unwritten conceptions of constitutionalism.

Like many collections of previous published work, this one has its strengths and its weaknesses. The essays are generally clearly written and accessible, and while Belz does not explicitly identify his audience, each of the essays should prove useful to constitutional scholars or advanced undergraduate students interested in the particular topic addressed. They don't quite add up to a coherent book, however, primarily because of the large amount of repetition of arguments across the individual chapters. Substantively, the particular strength of Belz's essays is a sustained effort to take seriously the relative autonomy of law from social and political forces and the role of constitutional norms in American political development, while their particular weakness is an underlying normative argument which Belz never convincingly establishes.

Belz argues persuasively that "constitutionalism . . . ought to be recognized as a distinctive ideology and approach to political life that warrants holistic analysis. Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on"(148-9). Because this point is important to all scholars of American constitutionalism, Belz's description of his theoretical approach is worth quoting at length:


"Constitutionalism shapes political life in a variety of ways. Constitutional principles can become matters of commitment and belief possessing intrinsic value that motivate political action. . . . When citizens and governing officials internalize constitutional values, acting out of fidelity to law rather than expediency, constitutionalism gives direction to political life. Constitutionalism has a configurative effect also in providing the forms, rhetoric, and symbols by which politics is carried on. Political groups and individuals ordinarily try to choose courses of action that are consistent with or required by the Constitution. They do so not because they are in each instance committed to the constitutional principle or value at issue . . . [but] because they know that the public takes the Constitution seriously, believing that it embodies fundamental values and formal procedures that are the touchstone of political legitimacy. In American politics the Constitution is a justifying concept, and groups that invoke constitutional arguments do so, from their own perspective perhaps and in an immediate sense, instrumentally. Considered from an external and long-range view in relation to the polity as a whole, however, reliance on constitutional principles and rules is normative and noninstrumental. In this way constitutionalism shapes political events"(154).


Applying what many contemporary scholars have termed a "constitutive" approach to understanding the role of legal ideas in political development, Belz undertakes an examination of the ever-present tension between fixed and "living" conceptions of the U.S. Constitution throughout our history. For example, Belz describes how the realist critique of laissez-faire government during the era of World War II "became an attack on constitutionalism itself," leading to a fatalistic attitude that constitutional limits cannot constrain political will (100). At stake in these debates "was nothing less than the survival of a method of politics that placed negative restraints on power," and given these stakes, along with the rise of totalitarianism in the 1930s and 1940s, constitutional scholars eventually "reviv[ed] the analysis of government in terms of arbitrariness versus the rule of law and . . . [became] increasingly aware of the danger of attacking constitutional law in the desire for solutions to specific problems"(104-5).

Belz provides a similar analysis of the revival of constitutional originalism in the 1980s, arguing that "[a]s conceived by its proponents, the theory of original-intent jurisprudence was the common-sense result of having a written constitution. Essentially taken for granted since the Constitution's adoption, the idea required explicit elaboration in order to counter the effect of decades of judicial-activist policy making based on values derived neither from the text of the Constitution nor the structure created by it"(229-30). He argues persuasively that "the attempt to recover the founding project of written constitutionalism, while it has not gained many converts among liberal scholars and judges, has succeeded in revising the terms of the debate in contemporary constitutional law"(223). One of the most admirable features of Belz's effort in these essays is his interdisciplinary attention to scholarship in the fields of constitutional history, political and legal theory, and behavioralist social science.

In addition to exploring the historical tension between written and unwritten conceptions of constitutionalism, however, Belz also wishes to advocate the former as the only legitimate reading of American constitutionalism. His argument on this point is familiar and proves no more persuasive here than elsewhere. For Belz, constitutional history -- particularly regarding the intentions of the framers -- is an indispensable source of foundational principles of legitimacy. He argues that since the New Deal, constitutional interpreters have defended a "living constitution" which has been "fundamentally antagonistic to the founding project of written constitutionalism," and that "[h]istorically and practically, th[is] founding project . . . better meets the republican requirement for a fundamental law that limits government"(8, 11). Belz indicts the usual suspects in this charge: in cases such as Brown v. Board of Education (1954) and Roe v Wade (1973), the Warren and Burger Courts relied on a philosophy of "living constitutionalism [which] manipulated the document as a pretext for policy making based on the ideology and subjective will of the Supreme Court justices"(9). Belz is particularly concerned with the dramatic growth of presidential and judicial authority during the twentieth century, observing that "[t]he power of the modern presidency . . . is a threat to republican government. Under the principles of written constitutionalism, however, the executive power can be construed to impose limits on presidential government"(11).

Belz's normative argument here is particularly problematic when he advances it in extreme, unsupported polemical terms. His critique of "the New Left attack on constitutionalism" during the 1960s, for example, devolves into a tirade against New Left social movements and their academic apologists, including Ben Barber, Wilson Carey McWilliams, and Sheldon Wolin. While his principal argument here is that "the new political theory of the antipluralists contradicts the fundamental ideas of constitutionalism," his further claim that these eminent political theorists had "disdain[ed], not just politics as usual, but critical rational thinking as usual" is simply unsupportable (138-9). Belz at times expresses his normative points more tentatively and moderately, noting in his final chapter, for example, that:


"In conclusion, tension exists between the founding project of written constitutionalism and the twentieth-century project of unwritten living constitutionalism. As a matter of historical fact, the result of this tension may be said to be a pluralistic constitutional culture suitable to the needs of a pluralistic republican people. Whether this perception will be elevated into a persuasive constitutional theory, providing a normative framework for limited republican government in the United States, remains to be seen"(262).


The bulk of his arguments in these essays, however, cuts much more sharply against living constitutionalism. In this very same concluding chapter, for example, he seeks to further his broader argument by addressing the recent innovative accounts of constitutional change offered by Bruce Ackerman, Sanford Levinson, and Stephen Griffin. Unfortunately, however, he does not much engage these arguments beyond a denunciation of their endorsement of unwritten constitutionalism. He rejects as illegitimate their effort to describe and justify the ways in which the Constitution has changed outside the bounds of Article V, but he offers no persuasive alternative for making sense of the post-New Deal welfare-regulatory state (240-245).

Finally, Belz's repeated attempts to invoke the support of "the people" for originalist jurisprudence strike me as implausible. For example, he notes that many scholars argue that the Constitution consists not solely in the text but also in certain extra-textual concepts and institutions such as the presumption of innocence and the party system, but he insists that:


"From the standpoint of public opinion, . . . legitimacy in American government still appears dependent upon or derived from direct reference to or necessary inference from the text of the Constitution. . . . After 200 years Americans still seem to be constitutional fundamentalists in regarding the text and original intent as conclusive of legitimate authority. Or perhaps we should say that while a narrow, legalistic textualism has not been the dominant characteristic of constitutional government in America, when an issue is made of the constitutional text the people will insist on the indispensably documentary foundation of constitutionalism"(37).


He argues further that the popular understanding that the Constitution "has a true, fixed, ascertainable meaning . . . has existed from the beginning of constitutional politics in the debate over ratification and it will probably continue until the popular belief that the Constitution as a document says what

it means and means what it says is eroded or superseded by a more sophisticated view of the nature of texts and political language"(34). Belz provides no direct empirical evidence for these assertions, and the episodes he does point to -- particularly the Bork nomination battle -- seem to run directly counter to his conclusions.

Despite these caveats, I would recommend Belz's book to anyone interested in the perennial struggle between originalist and "living" conceptions of American constitutionalism. His essays are often insightful and always thought provoking.


Copyright 1995