Vol. 2 No. 9 (September, 1992) pp. 121-123
CONTEST FOR CONSTITUTIONAL AUTHORITY: THE ABORTION AND WAR POWERS
DEBATE by Susan R. Burgess. Lawrence, Kansas: University Press of
Kansas. 172 pp. Cloth.
Reviewed by Sheldon Goldman, Department of Political Science,
University of Massachusetts at Amherst.
Political scientists have learned much by studying the effects of
major political realignments on the electorate and on policy
making by Congress. Professor Susan Burgess has written a
thoughtful book that can and ought to be the subject of debate.
That, no doubt, should immensely please her as dialogue, or, to
be more precise, engaged constitutional dialogue, is highly
valued by Burgess. In her book she develops the thesis that
judicial supremacy as distinct from judicial review is
incompatible with a vibrant polity involved in an ongoing
discourse over the meaning of the United States Constitution.
Departmentalism, whereby each branch of the government assumes
responsibility for interpreting the Constitution, is preferred
over judicial supremacy because departmentalism encourages
constitutional consciousness raising not only in the halls of
Congress and the Executive Branch but among the American people.
And when there is genuine debate over the meaning of the
Constitution and people listen to and sympathetically consider
the constitutional arguments of their opponents, the polity
cannot help but be politically healthier, if not wiser, more
civil, and with greater respect for the Rule of Law.
In her first chapter, Professor Burgess claims that judicial
supremacy, i.e., finality, does not have a firm historical basis
and has only been explicitly asserted by the Court since its 1958
decision in Cooper v. Aaron. The Supreme Court's historical claim
to finality, she argues, is not the same thing as a claim to
finality except in the specific case decided by the Court. The
Constitution should not be what the judges say it is but rather
what the independent branched of government and the people say it
is. Burgess says, "Clearly, judicial supremacy rests on
extremely tenuous grounds, logically and historically"
(p.7). Yet, paradoxically, much of the scholarly community
including opponents of judicial activism such as Robert Bork
accept judicial finality. This "has vastly constricted the
contemporary constitutional debate" (p. 9).
To counter this sad state of affairs, Burgess offers
departmentalism-- "each state and branch of government has a
right to interpret the Constitution on its own, even if its
interpretation challenges that of the judiciary" (p.11).
Burgess argues that among the benefits of departmentalism, as an
alternative to judicial supremacy, are that congressional attacks
on the judiciary would be replaced by debates over the meaning of
the Constitution, the quality of judicial interpretation would be
improved, and the public's constitutional consciousness would be
raised. She also recognizes the costs of departmentalism
including political and legal confusion, the danger that Congress
would gain supremacy and fail to safeguard individual rights, and
that if Congress did not achieve supremacy the executive branch
would. But Burgess sees such cost-benefit evaluation of
departmentalism unsatisfactory and instead proposes evaluation of
departmentalism in terms of a model of constitutional
consciousness.
Burgess suggests six levels of constitutional consciousness. The
lowest level she calls the "nonparticipating" level
whereby Congress and the public accept judicial supremacy and
completely acquiesce to the Court's decisions and the entire
Court itself relies on precedents and dismisses new arguments. At
the highest level, the "engaging" level, congressional
and citizen debate engage opposing arguments and the Court
majority engages new and opposing arguments. It is the engaging
level to which Burgess believes we should aspire. It is at this
highest level of constitutional consciousness that
"participants will view the opposition's alternative
position as a contending, yet legitimate constitutional reading
and therefore seriously consider and sympathetically address
their arguments and concerns, with the Constitution as a common
referent" (p.26).
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Burgess tests her model of constitutional consciousness and the
viability of departmentalism with case studies of the
constitutional debates over abortion in the 1980s (chapter two)
and the constitutional debates in 1964, 1973, and 1987 over the
war powers of the executive branch (chapter three). Her fourth
and final chapter offers her concluding thoughts on
departmentalism, constitutional consciousness and the Rule of
Law.
The abortion issue provides an analysis of constitutional debates
in the context of judicial activism. The war powers controversies
offer an analysis of debates in the context of judicial restraint
but claims of executive supremacy. Burgess's emphasis is on
congressional hearings and floor debates, but she also considers
Court decisions. Burgess finds that as Congress practiced
departmentalism, constitutional consciousness was heightened. But
the highest level of constitutional consciousness, alas, was
elusive. Nevertheless, she concludes her study by asserting
"the facts are that constitutional consciousness exists and
that departmentalism is superior to judicial and executive
supremacy in terms of fostering constitutional consciousness and
broadening constitutional authority" (p. 126). Indeed,
departmentalism "keeps... the promise of self-government
alive" (p. 126).
In evaluating this book, I should note at the outset that
Professor Burgess has written a serious work on a topic of
continuing academic interest that utilizes timely case studies.
The book is well-written and demonstrates a good grasp of the
contemporary literature on constitutional interpretation. The
descriptions and analyses of the abortion and war powers debates
are well done. She has a provocative thesis which she tests as
well as can be tested by the case study method. Yet despite all
of the many virtues of this book I cannot take a seat in this
house of Burgess.
Although I agree with the proposition that the Constitution is
too important to leave to the judges, I have several problems
with Burgess's analysis. The first is that I cannot buy into her
vision of the highest level of constitutional consciousness. I
simply cannot visualize the American polity as students in one
great big constitutional yeshiva engaged in talmudic discourse on
constitutional issues. Ironically, the judicial branch which is
the one institution of government that has the potential to (and
sometimes achieves) engaged constitutional discourse, is given
the back of the hand by Burgess because she claims judicial
supremacy inhibits constitutional discourse by others which in
turn often prevents the attaining of the highest level of
constitutional consciousness even by the Court itself.
I also have trouble with the distinction between judicial review
and judicial supremacy. If, as Burgess concedes, the Court has
the power of judicial review which she says mean finality with
respect to the particular dispute, how can she logically reject
judicial supremacy on the point of constitutional law upon which
that dispute was resolved? If the Court does not have the final
word on constitutionality, how can its resolution of
constitutional disputes have finality? Burgess, of course,
recognizes the widespread acceptance of judicial supremacy which
she blames for stunted constitutional discourse. But in so doing
I think she overstates the empirical reality of judicial
supremacy and thus succumbs to the upper-court myth which ignores
the empirical reality of compliance with Court rulings.
Furthermore I have trouble with Burgess's insistence that the
concept of judicial supremacy lacks firm historical grounding. As
I see it, the historical evidence reveals that judicial review
and judicial supremacy have always been bound together. Burgess
fails to mention much less discuss the seminal debate in the
first decades of the nineteenth century between Spencer Roane,
perhaps the nation's leading advocate of departmentalism, and
John Marshall's Supreme Court. To be sure, the early nineteenth
century controversy centered around federal judicial supremacy
over the state courts and state court claims that they are
entitled to interpret the federal Constitution on their own and
have equal standing with the U.S. Supreme Court on such
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matters. Matters came to a head in the Hunter's Lessee
controversy with the Court's opinion in Martin v. Hunter Lessee
representing the definitive rebuttal of such claims of
departmentalism from the states. Surely the Hunter's Lessee
opinion, with its elaborate justification for federal judicial
supremacy in the interpretation of the Constitution, should have
been considered by Burgess. Likewise, Congress has long
acknowledged judicial supremacy in the interpretation of the
federal Constitution as an operating reality of our system of
government. Were this not so the nation would have had a federal
income tax long before the Sixteenth Amendment became a part of
the Constitution, child labor would have been outlawed and social
legislation in effect long before the switch-
in-time-that-saved-nine.
Interestingly, Burgess does not discuss an excellent example of
departmentalism in action that demonstrates its flaws -- the
shameful actions by governmental institutions and officials
following Brown v. Board of Education. The Southern Manifesto was
a manifesto of departmentalism and its face was ugly and ominous.
Surely, the deliberate evasion of Brown's mandate in the 1950s
and 1960s by countless school boards and numerous states is not
the constitutional vision shared by Burgess.
At the federal executive branch level there are disturbing
examples of departmentalism in action producing policies such as
the abortion gag rule which compromise civil liberties. At the
congressional level, a less troublesome example of
departmentalism in action that might have been mentioned by
Burgess is the continuing vitality of the legislative veto thus
rendering the Court's constitutional interpretation mere idle
Chadha.
In the final analysis, we ought to ask whether a Rehnquist Court
with its departmentalist overtones in its buck-passing on many
issues of civil liberties and civil rights is preferable to a
Warren Court with its activist embrace of judicial supremacy and
its expansion of rights and liberties. Professor Burgess avoids
answering this and appears to be more concerned with process than
policy. The implication seems to be that if there is engaged
constitutional discourse the "right" policies will
emerge.
In sum, then, Professor Burgess has produced a stimulating book
that whatever one's view of departmentalism, judicial supremacy,
and constitutional consciousness, deserves to be read. Her book
is a natural for undergraduate and graduate courses on
constitutional interpretation and has the potential for providing
the basis for rewarding class discussions.