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.