Vol. 11 (September 2001) pp. 438-442.

IMPLEMENTING THE CONSTITUTION by Richard H. Fallon, Jr. Boston: Harvard University Press, 2001. 186 pp. Cloth $35.00. ISBN: 0-674-00464-7.

Reviewed by Dennis J. Goldford, Department of Politics and International Relations, Drake University.

Richard Fallon's IMPLEMENTING THE CONSTITUTION consists of an Introduction, eight chapters of oddly varying length that do not always fit together well, and a brief Conclusion. Chapter 1, "Originalism," is 13 pages in length. Chapter 2, "The Supreme Court as the Forum of Principle," is 11 pages, and Chapter 3, "Constitutional Implementation," is only 8 pages. Chapter 4, "Extraordinary Adjudication," is 31 pages, Chapter 5, "Doctrinal Tests and the Constitution," is 26 pages, and Chapter 6, "Ordinary Adjudication," is only 9 pages. Chapter 7, "Legitimacy and the Unwritten Constitution," is 16 pages; and Chapter 8, "Against Populism and Methodological Pragmatism," is a mere 7 pages. If these lengths were not odd enough, Fallon tells us that readers may skip Chapter 5-one of the two "full" chapters-if they are not well versed in the intricacies of constitutional doctrines. Overall, it is a short book (137 pages exclusive of endnotes), with the pasted-together feel of an attempt to stretch a few law-review articles into a book-length manuscript.

To describe the thesis of this book, I would place Fallon's project in the context of the basic logic of what I call the American constitutional syllogism:

P1. If X is contrary to the Constitution, then X is null and void.

P2. X is contrary to the Constitution.

C. Therefore, X is null and void, where X is an act of a federal, state, or local government.

P1 is the major premise of the constitutional syllogism and expresses the unchallenged proposition that within the American political system the Constitution has the status of fundamental law. P2 is the minor premise of the syllogism and expresses the claim that a particular act of government is inconsistent with the powers granted by the Constitution. Given the major and minor premises of the constitutional syllogism, the conclusion necessarily follows that the particular act of government in question is null and void. The source of controversy in constitutional interpretation is P2, for it raises two central questions: first, who in the American political
system is authorized to determine that X is contrary to the Constitution; and second, how-i.e., by what criteria-does the authorized interpreter(s) determine that X is indeed contrary to the Constitution? The former question initiates the debate over the legitimacy of judicial review and the complementary debate over judicial activism and judicial restraint, and the latter question initiates the debate over the nature of constitutional interpretation.

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As an acquaintance with almost any set of constitutional cases would indicate, however, much, if not the overwhelming amount, of what the Supreme Court does involves argument over what we might call, in terms of the syllogism above, a sub-syllogism. Reformulated to include that sub-syllogism, the structure of reasoning would look like this:

P1. If X is contrary to the Constitution, then X is null and void.

P1.1. If X fails test Q, then X is null and void.

P1.2. X fails test Q. Therefore,

P2. X is contrary to the Constitution.

C. Therefore, X is null and void.

Examples of such argument over the sub-syllogism include the LEMON Test in Establishment Clause cases and levels of scrutiny-the rational basis test, intermediate or heightened scrutiny, and strict scrutiny-in Due Process and Equal Protection cases. Against this background, the burden of IMPLEMENTING THE CONSTITUTION is the claim that the great bulk of the actual and proper practice of the Supreme Court is not the heroic activity of issuing great pronouncements on the meaning of the Constitution, but rather the more modest task of wrestling with and articulating the sub-syllogism of constitutional reasoning. In Fallon's words:

"Rather than picturing the Justices as pervasively engaged in a search for the Constitution's one true meaning, I argue in this book that we should understand the Supreme Court's role as a more multifaceted one of "implementating" constitutional norms. The term IMPLEMENTATION invites recognition that the function of putting the Constitution effectively into practice is a necessarily collaborative one, which often requires compromise and accommodation. It also emphasizes the practical, frequently strategic aspects of the Court's work. A distinctive feature of the Supreme Court's function involves the formulation of constitutional rules, formulas, and tests, sometimes consisting of multiple parts" (p. 5).

The principal obstacle to the recognition accurate description, and assessment of the role of the Supreme Court, Fallon contends, is what we can call the grand theory of judicial role, which is manifest in theories of constitutional interpretation such as originalism and forum-of-principle theories like that of Ronald Dworkin. As different as both positions are, he argues, they are equally wrong in their assumption that the role of the Court is to search for the one, true meaning of the Constitution, whether that meaning is to be found in history or philosophy.

In other words, Fallon's book is a reminder that the justices are ultimately not historians or philosophers, but practical lawyers. He argues that,

"by rejecting the mesmerizing notion that the Court's only proper role is identifying the Constitution's one, true meaning, we can get a richer picture of what the Court does and a more enlightening framework for considering what the Court ought to do. For one thing, abandoning the view of doctrine as ideally being a perfect reflection of constitutional meaning helps us better appreciate the

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array of choices open to the Court in crafting rules and tests. We can begin to see different kinds of tests that the Court familiarly uses as available, but seldom necessary, mechanisms for protecting constitutional values. Moreover, when we recognize that the Court may sometimes under- as well as overenforce constitutional norms, we can appreciate the urgency of assessing the grounds on which the Court determines whether to do so" (p. 7).

Both originalism and forum-of-principle theories are grand theories of judicial role, Fallon argues, and as such they miss the character of the actual practice of the Court. After a familiar and rather perfunctory critique of originalism in Chapter 1, Fallon argues against Dworkin in Chapter 2 that "much of the Court's work is concerned not so much with furnishing the best 'moral reading' of constitutional language ... as it is with the development of legal tests and doctrines that will work in practice- frequently at very low levels of generality-to protect constitutional values" (p. 28). As practical lawyers, Fallon writes, the justices' task is "to develop doctrines and remedial mechanisms that realize ideals successfully in practice" (p. 60). His argument is in essence a Burkean plea for attention to the concrete and particular as opposed to the claims of abstract theory, whether that abstract theory is originalism or the forum-as-principle.

The central thesis of the book, introduced in tiny Chapter 3, is thus that where both originalists and forum-as-principle theorists focus on interpretation, the Court's proper and more usual role is implementation:
"If we had to choose one word to characterize the proper role of the Supreme Court in constitutional adjudication, it should not be "interpretation" but implementation." Implementation is a function that is often, and sometimes necessarily, collective. No one, and no institution, could successfully implement the Constitution alone. Implementation is extended over time, and it requires collaboration. If we view the Court's central role as implementing the Constitution, we can better understand why the Justices sometimes must compromise their own views about what would be best in order to achieve coherent, workable constitutional doctrine. We can also grasp why it might sometimes be appropriate for the Court to defer to other institutions. As much as the Court itself, Congress, the president,
and the states have a role in implementing the Constitution" (pp. 37-38).

The mistake of grand theories of judicial role, Fallon maintains, is to assume that "every case should furnish an occasion for judicial inquiry into the truth about what the Constitution means. Yet the Supreme Court patently does not function in this way. In most cases the Court proceeds on the tacit understanding that it will apply, without reexamining, frameworks that were crafted in earlier decision" (pp. 43-44). When it applies such frameworks of established doctrine, the Court is engaged in what Fallon calls ordinary adjudication.

"By contrast," Fallon illustrates in Chapter 4, "in 'extraordinary' cases, the Court concludes that it cannot resolve the question before it without either crafting new doctrine or reconsidering the wisdom or applicability of an existing doctrinal

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framework" (p. 43). The category of extraordinary cases "encompasses any case in which the Court first articulates a constitutional principle, or prescribes a doctrinal test, or treats its prior holdings as open to serious reconsideration on the basis of ultimate concerns-any case, in other words, that the Court frames as not directly governed by accepted precedent" (p. 56). Nevertheless, while it might appear that in extraordinary cases the Court reverts to what Fallon criticizes as the grand theory of judicial role, he argues that in order to implement the Constitution in practical terms, "the Court must go beyond the abstract moral principles rightly celebrated by the forum-of-principle model; the Justices must draw on psychology, sociology, and economics to craft doctrines that will work in practice,
without excessive costs, and that will prove democratically acceptable" (p. 77). The justices must consider such pragmatic, prudential factors as ultimate ideals of constitutional justice, institutional concerns, costs to governmental interests, judicial manageability and enforceability, risk of error "in the fog of uncertainty," and democratic acceptability in light of reasonable disagreement. Their role "is not exclusively one of truth telling about the meaning of the Constitution (as seen in their best personal lights), but is sometimes one, even predominantly, of carrying on a necessarily cooperative project of implementing the Constitution" (p. 69).
In effect, Fallon wants to remind law professors and judges that the justices are not Platonic guardians but simply, though importantly, practical lawyers.

The doctrinal tests Fallon sketches in Chapter 5, through which the Court goes about actually implementing the Constitution in practical circumstances, include forbidden-content tests (facial unconstitutionality), suspect-content tests (e.g., suspect classifications), balancing tests, non-suspect content tests (e.g., rational basis test), effects tests, purpose tests, and appropriate-deliberation tests. Chapters 6 and 7 briefly discuss and ordinary adjudication to defend its limited, status-quo character against both the more heroic claims of forum-of-principle theories and the challenge that it under-enforces constitutional principle. Fallon presents this
defense by arguing that, "the United States has an unwritten as well as written constitution," under which "the Supreme Court is not only authorized but also required to make practical, predictive, and sometimes tactical judgments of the kind that I have described" (p. 111). Finally, in Chapter 8 Fallon criticizes what he calls "constitutional populism," defined as the position which attacks judicial review per se, and constitutional or methodological pragmatism, defined as the position which authorizes the Courtto engage in even more independent, wide-ranging judicial review.

If the principal goal of IMPLEMENTING THE CONSTITUTION is the modest one of reminding us that the justices of the Supreme Court function mainly as
practical lawyers charged with implementing abstract constitutional provisions in detailed and concrete circumstances, then perhaps this book does make that modest contribution. After all, modesty is a greatly underrated virtue. Nevertheless, as a book rather than a law-review article, IMPLEMENTING THE CONSTITUTION is disappointing. Although Fallon leaves undeveloped a potentially interesting idea when he suggests that the GRUNDNORM or rule of recognition of constitutional validity is not original intent (or understanding) but rather patterns and practices of acceptance, the critique of originalism is unoriginal. One thus could argue that whereas originalism

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would maintain that practices of acceptance derive or develop from original intent, it is just as reasonable, and perhaps even more fruitful, to argue that the normative character of original intent derives or develops from practices of acceptance. This is indeed interesting, but Fallon chooses not to pursue it here.

As to his preference for implementation over interpretation in the rest of the book, he leaves the reader wanting a much more thorough investigation of the precise character of the relationship between the two. If Fallon wants to argue that the bulk of what the Court does is, and ought to be, ordinary adjudication, we might ask whether the Court ever decides merely "ordinary" cases, or whether those (with the exceptions of disagreements among the circuits) are decided at lower levels. We want to know more about the validity of his distinction between "ordinary" and "extraordinary" cases, which he admits is "necessarily permeable as well as blurry" (p. 43). When we think of the arguments over appropriate sub-syllogism tests in such cases as THORNBURGH, WEBSTER, and CASEY, we find that much of the conflict among the justices has to do with whether, in Fallon's terms, the case is indeed ordinary, and thus resolvable by established doctrine and tests, orextraordinary, and thus in need of recurrence to principle in order to articulate new doctrine and tests. It is not, or not only, the romantic hubris of judges and legal scholars that triggers the appeal to grand theory; it is the dependence of implementation on interpretation. If we read between the lines, we can see that Fallon does recognize that while interpretation is not a sufficient condition of implementation, it is certainly a necessary condition, but his actual text runs the danger of throwing the baby out with the bath water. Finally, OF COURSE the Court is not the SOLE arbiter of constitutional meaning; the ultimate unit of analysis in constitution
interpretation is not the Court but the political and interpretive interplay among courts, legislatures, executives, and the public. Perhaps it is only the sometimes tunnel vision of the law professorate that calls forth a corrective like Fallon's here which seems so obvious to the rest of us.

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Copyright 2001 by the author, Dennis J. Goldford.