Vol. 2 No. 7 (July, 1992) pp. 97-99

THE CONSTITUTION IN CONFLICT by Robert A. Burt. Cambridge: The Belknap Press of Harvard University Press, 1992. 462 pp. Cloth $29.95.

Reviewed by Daryl R. Fair, Trenton State College

In this substantial volume, Robert Burt makes an important contribution to the constitutional theory debate that has been going on for over three decades. Burt contends that this debate has been conducted on the wrong terms. The controversy has, in Burt's view, been carried out within the context of Alexander Hamilton's ideas concerning judicial power. Burt argues that Hamilton believed "...that an actively available locus of indivisible sovereign authority was necessary in any government worthy of the name..." (p. 52). Hamilton found this sovereign authority to rest in the nation as opposed to the states, and, at the national level, in the Supreme Court of the United States. This interpretation is, of course, Hamilton's argument in FEDERALIST 78, and it has been widely viewed over the years as conclusive evidence of the original intent of the Founding Generation. Burt argues that Hamilton had his own views on political theory and that his analysis of the Constitution in THE FEDERALIST PAPERS may well have reflected those views rather than the views of the majority of the delegates to the Philadelphia Convention.

Burt believes that James Madison had a distinctly different view of judicial power and that Madison's approach is as plausible a contender for original intent as the more familiar Hamiltonian stance. Madison's views are not contained in one convenient essay written around the time of the drafting of the Constitution, but must be pieced together from FEDERALIST 47 through 51, letters, debates in the House of Representatives, the Virginia Resolution, and other sources. Burt distilled from these sources several Madisonian principles. (1) "...[S]overeignty should not be unitary but divided and subdivided so that ultimate governance authority would be dispersed and shared" (p. 73). (2) "...[T]he federal judiciary was supreme as against the states but was only co-equal as against the other branches of the federal government..." (p. 72). (3) "...[C]onstitutional interpretation takes place over time, not in a single instant at a fixed and privileged institutional locus of interpretive authority" (p. 68). (4) "...[I]nstitutional competitors for interpretive authority must be linked together in an inextricably nested relationship, so that each would see its interdependence with the others and all would accordingly work toward mutual accommodation" (p. 68-69).

Madison's jurisprudence was therefore aimed at preventing coercion of some interests in society by others; institutional arrangements were the main device for achieving this objective. Unfortunately, Madison's views did not prevail in the period prior to the Civil War. That debate was conducted on Hamiltonian terms. "The proposition that every government must have one supreme sovereign was common ground between North and South; and on this ground the Union split, because each side asserted a unitary but mutually inconsistent locus of authority" (p. 78).

Burt argues that Abraham Lincoln attempted to provide an answer similar in intent to Madison's but based on democratic theory. In an 1854 address, Lincoln said, "What I do say is, that no man is good enough to govern another man, without that other's consent. I say this is the leading principle -- the sheet anchor of American republicanism" (quoted on p. 82). Burt contends that this view brought Lincoln to the position that both majority rule and judicial supremacy were suspect in a democratic polity. Burt calls the principle Lincoln referred to as mutual consent, and he argues that this mutual consent is required because of human equality. Lincoln viewed equality as being embedded in the Constitution even though it was first enunciated in the Declaration of Independence.

Commitment to the principles of equality and mutual consent has serious implications. Burt

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argues that it "...excludes all coercion, except as a defensive response to others' unilateral use of force. This response, moreover, can hold true to the principle of equality and mutuality if the defensive coercion is aimed not at the subjugation of the original aggressor but only at the restoration of an equal, mutually consensual relationship" (p. 85). Therefore, both the Supreme Court's attempt in DRED SCOTT to end the slavery controversy by judicial fiat and the South's attempt to end the dispute coercively by secession were violations of the principles of equality and mutual respect. Any attempt, whether by a legislative majority or a judicial elite, to use coercion to end disputes fails to pass muster under these principles.

Burt uses this Lincolnian jurisprudence as the basis for his central principle: "...that judicial supremacy in constitutional interpretation is inappropriate and that a different conception of judicial authority -- the Supreme Court as equal, not hierarchically superior, to other branches -- is preferable in principle and practice" (p. 3). He argues that the Supreme Court, probably unwittingly, used this approach successfully in BROWN V. BOARD OF EDUCATION but followed a Hamiltonian approach, with much less success, in the cases involving the Nixon tapes, the death penalty, and abortion. With respect to BROWN, Burt states:

"The Court properly ruled in BROWN that because race segregation laws imposed subjugation, they violated the democratic equality principle and were therefore illegitimate. The Court could do nothing more, however, in principle or in practice than delegitimize the state laws; it could not authoritatively impose a legitimate, reciprocal relationship of acknowledged equality. Such a relationship would have to be worked out, among other places, in the give-and-take of congressional debate. The Court's restraint -- coupled with its implicit, continuous solicitation of a congressional response during the decade preceding the passage of the 1964 Civil Rights Act -- demonstrated the answer to the question ... posed at the outset: How can the Supreme Court properly adjudicate constitutional disputes, notwithstanding its questionable legitimacy to do so?" (p. 303).

While BROWN is an outstanding example of Burt's approach in practice, the Nixon tapes case, the death penalty cases, and the abortion cases were just the opposite. In U.S. V. NIXON the Supreme Court chose to intervene in a dispute which was working itself out along the lines Burt advocates. By short-circuiting the process, the Court endorsed coercion and actually advanced Nixon's subversion of the principle of democracy. In both the death penalty and abortion cases, the Court abruptly took strong positions (in FURMAN V. GEORGIA and ROE V. WADE) and did not set the stage for the sort of constitutional dialogue that took place over school desegregation. The court was, of course, not as united in its views on the death penalty and abortion as it was on racial segregation and the result "...of the court's interventions was provocation rather than pacification" (p. 353). Changes in personnel and views have subsequently led the court to turn away from the strong positions taken in the earlier cases.

Burt concludes that "... the inescapable dilemma at the core of democratic principle ... " is the fact " ... that unforced unanimity is the only legitimate basis for an equal relationship and that this state is almost impossible to obtain in practice" (p. 374). Yet this impossible ideal must be the guide to all social relations and institutional arrangements if we seek to achieve the democratic principle. Judicial supremacy undermines this ideal. "Unquestionable authority is at its core an antidemocratic idea--no matter who purports to exercise that authority, no matter what its imagined source" (p. 374).

It is difficult to summarize Burt's well-written, tightly- reasoned and richly illustrated argument in this brief essay. This book is a major

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contribution to the debate over constitutional theory. It presents a clear and provocative alternative to the other major contenders in this debate. Burt supports his argument with copious citations of sources and also includes a helpful table of works cited. His description of Madisonian and Lincolnian jurisprudence is persuasively presented. His preferred constitutional theory, based on Lincoln's political theory, is very attractive to anyone holding egalitarian political values.

But Burt's views are also persuasive because they give a principled reason supporting what seems to happen anyway. Supreme Court decisions often are the beginning rather than the end of constitutional interpretation. Over a period of time, sometimes decades, society and the political system work out what the Constitution is to mean. The Supreme Court is a major player in that process, but it is by no means the only player. Perhaps if the Court saw its role in Madisonian terms rather than in terms of Hamiltonian judicial supremacy, the process of constitutional interpretation would be facilitated.

In any event, with this book Burt makes a solid contribution to constitutional theory. Anyone working in the field should read THE CONSTITUTION IN CONFLICT.

Copyright 1992