Congress and the Constitution

CONGRESS AND THE CONSTITUTION, by Neal Devins and Keith E. Whittington (eds). Duke University Press, 2005. 336pp. Cloth. $84.95. ISBN: 0-8223-3586-7. Paper. $23.95. ISBN: 0-8223-3612-X

Reviewed by Joseph L. Smith, Department of Political Science, University of Alabama. Email: josmith [at] bama.ua.edu

CONGRESS AND THE CONSTITUTION comprises a series of essays discussing many different contexts in which Congress grapples with constitutional issues. Its contributors explicate these situations and describe the processes used by Congress and the quality of its deliberations. The argument of the volume as a whole is that congressional interpretation of the Constitution is sufficiently frequent and meaningful that it deserves to be studied by scholars of the American political system and legislative bodies. It succeeds in showing that Congress must interpret the Constitution in order to carry out its duties and that in many situations its efforts are creditable. The book includes informed discussion of how congressional interpretation of the Constitution actually does affect the operation of the government, as well as arguments about how congressional interpretation should influence the government.

One of the strengths of the essays in this volume is that they show very good awareness of recent theoretical and empirical scholarship into how Congress works and integrate these findings into discussions of congressional dealings with the Constitution. This book does not focus merely on evaluating Congress’ ability to get the Constitution right; it uses sophisticated understandings of congressional structure and members’ incentives to explicate the situations in which Congress interprets the Constitution.

One of the more impressive aspects of the book is that it presents very useful information for scholars interested in understanding how Congress’ use of its constitutional powers affects other departments of the national government. Michael Gerhardt’s chapter on the federal appointment process argues convincingly that Congress has created a nuanced and complex understanding of its role. By creating nomination procedures, dictating qualifications for particular offices, distributing powers across federal offices, and evaluating nominees, Congress has shaped the balance of power between itself and the president in the appointment process. This balance of power allows the president varying latitude, depending on the nature of the office under consideration. One implication of this finding is that the president can more or less appoint officials who mirror his own policy preferences, depending on senatorial practice regarding appointments to the particular office. Thus, students of the bureaucracy could use this finding to assess the extent to which particular agencies are likely to mirror the president’s policy goals. [*77]

Several chapters of the volume illustrate how Congress avoids grappling directly with the meaning of the Constitution. One would think that Congress might confront the meaning of the Constitution most directly when the Supreme Court, in reviewing a federal law, tells Congress that it has gotten the meaning wrong. However, Mitch Pickerell’s chapter on congressional responses to the Court’s invalidation of federal laws indicates that Congress typically tries to achieve its policy goals by rewriting the contested statute in a way that respects the Court’s decision on the matter. Thus, Congress can achieve its policy goals while avoiding a direct confrontation over the meaning of the Constitution. This conclusion is so plausible that it seems obvious after it has been explained, but it is nonetheless an uncommonly nuanced understanding of the interactions between Congress and the Court.

Some of the chapters make normative arguments about the deference with which the Supreme Court should treat Congress’ understanding of the Constitution. William Eskridge and John Ferejohn, for example, argue that some federal laws are “super-statutes.” These extraordinarily significant laws reflect a novel understanding of congressional powers that, once accepted by the popular culture, will have consequences beyond the original law. The Civil Rights Act of 1964 is perhaps the best example. The Court, argue Eskridge and Ferejohn, should take seriously the understanding of Congress’ constitutional powers manifested by the super-statute and thus absorb it as part of its own reasoning regarding the issues.

Similarly, Devins’ analysis of congressional incentives to conduct good-faith fact-finding suggests that the Court should treat Congress’ fact-finding efforts with deference in some areas (such as separation of powers) but be suspicious in areas where legislators’ electoral incentives are likely to color their judgment (such as federalism). Additional essays by Mark Tushnet, Barbara Sinclair, and Elizabeth Garrett and Adrian Vermeule evaluate whether Congress, given its institutional characteristics and the electoral goals of its members, has the capacity to interpret the Constitution.

Bruce Peabody’s engaging chapter investigates the extent to which members of Congress believe in their own ability to interpret the Constitution. Peabody shows that legislators believe they have institutional authority to interpret the Constitution, and that their perspectives (as compared to judges’ perspectives) are valuable for achieving a workable Constitutional understanding.

This book would be appropriate for a graduate course on Congress. Assigning individual essays to different graduate students would generate a profitable discussion about Congress’s interpretation of the Constitution in varying contexts. This volume includes much that is very original and thought-provoking, even for a number-crunching social scientist like myself.

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For more information about this book, go to Duke University Press