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.

Copyright 1992