Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

Vol. 14 No. 7 (July 2004), pp.548-551

DESPERATELY SEEKING CERTAINTY: THE MISGUIDED QUEST FOR CONSTITUTIONAL FOUNDATIONS, by Daniel A. Farber and Suzanna Sherry. Chicago: The University of Chicago Press, 2004. 208pp. Paper $17.00. ISBN: 0-226-23809-1. Cloth. $25.00. ISBN: 0-226-23808-3.

Reviewed by J.D. Droddy, Legal Studies Programs, New Mexico State University-Alamogordo. E-mail: jddroddy@zianet.com.

On page 1 of DESPERATELY SEEKING CERTAINTY, Daniel Farber and Suzanna Sherry take dead aim at what they call “foundationalism,” which (they say) “seeks to ground all of constitutional law on a single foundation.” Their thesis is that “foundationalism is doomed to failure no matter how brilliant the theorist or how important the foundational idea.” For the remainder of the book, they make powerful and reasoned arguments against “foundationalism,” as practiced by six prominent scholars, whose views run the political spectrum from far right to far left. Among other criticisms of “foundationalism” in general is that it “often leads to radical results.” In the end, whether they are successful in persuading the reader that all “foundationalism” is doomed to failure will, of course, depend on the individual reader. But, whether or not one agrees with the conclusions reached by Farber and Sherry, this book is well worth reading for a couple of reasons.

First, as a summary description and critique of the scholarship of Robert Bork, Antonin Scalia, Richard Epstein, Akhil Amar, Bruce Ackerman, and Ronald Dworkin, this book is as good as it gets. The ideas of each of those scholars are approached with respect, but not awe. They describe each scholar’s ideas fairly and relatively completely. The critiques are reasoned and balanced. For this reason alone, DESPERATELY SEEKING CERTAINTY should be required reading for students of judicial politics.

The book is also worth reading because it is well done. The analyses are thorough, and its tone is one of reasoned discourse, which avoids the error of erecting barriers constructed of substantive ideology that tend to dissuade readers — particularly readers with a strong opposing ideology — from seriously examining the merits of the author’s arguments. This is not a book that can be fairly characterized as “liberal” or “conservative,” in terms of substantive ideology. Indeed, it is about method, not results.

The authors launch their attack on “foundationalism” by aiming at an easy target, Robert Bork. The actual title of the chapter is “In the Beginning: Robert Bork and Other Originalists,” but it is Bork at whom the bulk of the chapter is aimed. Bork is an easy target particularly because his form of originalism is not consistent. Rather, it is what I have labeled elsewhere as “incoherent originalism” (Droddy, 1999). He insists on an originalist methodology, except in those areas (such as unenumerated rights) where originalism yields a result he does not [*549] particularly like. Farber and Sherry rightly point out this inconsistency on Bork’s part, but they do not concede that consistency (or coherence) may strengthen the efficacy of originalism as a methodological approach to resolving constitutional questions. Rather they briefly review the writings of other originalists, such as Frank Easterbrook, Steven Calabresi, Gary Lawson and Richard Kay, and ultimately conclude that originalists have “a naïve view both of the judicial enterprise and of history” (p.14).

Supreme Court Justice Antonin Scalia appears to be a more difficult mark for Farber and Sherry. The authors seem critical, but not wholly unsympathetic, to Scalia’s approach, which they describe as a “formalist crusade.” For example, they declare that “[s]ome of Scalia’s scholarly writings have an appealing, almost rueful quality” (p.30). They also describe Scalia as “in some respects . . . the most intriguing of (their) subjects” (p.30). Perhaps the kid-gloves approach to Scalia might be explained by the pragmatism the Associate Justice occasionally adds to his theories of constitutional interpretation. In the “Preface” to DESPERATELY SEEKING CERTAINTY, the authors note that the “mainstream constitutional scholarship that is the focus of [this book is] flawed at least in part because [it rejects] pragmatism as an approach to legal decisionmaking” (p.x).

Although Farber and Sherry indicate a qualified approval of Richard Epstein’s “call for common sense over cleverness,” they approve of very little else about Epstein’s theories. For example, they accuse Epstein of ignoring “the basic historical fact that the Constitution was designed to strengthen, not to eliminate, federal government power” (p.57) (emphasis in original). Moreover, they describe Epstein’s “grand theory” as perhaps “the grandest” of all those examined “because of his ambition to cover all of public and private law in one unified framework” (p.57). Conceding that the scope of Epstein’s theory gives it “a certain intellectual grandeur that makes the other theories look ad hoc and shabby by contrast” (p.57), they nevertheless reject it. It is, they say, brilliant but not sound. Where all foundationalist theories go wrong

— and none more brilliantly or thoroughly than Epstein — is in the assumption that common sense is ultimately complete and coherent, so that we can expect to find that the ‘right answer will be simple and straightforward,’ if only we use our common sense as the basis for the right theory (pp.57-58).

Having dismissed the “grand” constitutional theories of the right, Farber and Sherry turn to those of the left. There they find no less fodder for criticism. They begin with Akhil Amar, whose constitutional theory is described by Farber and Sherry as allowing “freewheeling majority rule, including a right to amend the Constitution without following the rules laid down in Article V” (p.75). The authors review Amar’s methodology, which he labels as “intratextualism,” and which they characterize as a “cross of sorts between textualism and originalism” (p.76). Quoting Amar, the authors explain that intratextualism “tries to read a word or phrase that appears in the Constitution in light of another passage in the Constitution featuring the same (or a [*550] very similar) word or phrase” (p.76). In its most benign form (“weak intratextualism,” as they call it), the methodology meets the approval of Farber and Sherry; however, they reject “strong intratextualism.” In defining “strong intratextualism,” they rely on others who have described it “as ‘an approach using inferences drawn from parallel provisions to trump localized arguments based on text, history, and precedent’” (Vermeule & Young, 2000). Still, it is not intratextualism — or any form of textualism — per se that is the problem, as Farber and Sherry see it; it is the use of textualism exclusively AND its use to further a substantive agenda. This is similar in kind to the criticism the authors have of all the scholars examined. Three quotes from the chapter illustrate the points.

Textualism — even when combined with originalism — thus must be tempered by judgment: we must be able to sit back and evaluate the results produced by a textualist analysis and essentially ask if they make sense (p.85).

The problem is not the theory — textualism, originalism, or populism — but the way in which it is used. For Amar, the mistake is not in focusing on text and history, but in focusing exclusively on text and history (p.96).

Like our other scholars, Amar tends to use his interpretive approach to reach results he likes. For example, he says that a textual analysis must include “the study of enactment history.” But when it comes to interpreting the Equal Protection Clause, whose legislative history clearly shows no intent to prohibit segregation, he argues that we should ignore that history in favor of the text (pp.93-94).

While Farber and Sherry acknowledge that Bruce “Ackerman’s knowledge of history is both broad and deep, and he less often loses sight of the forest for the trees,” they nevertheless characterize him as “a foundationalist whose structure is built on a weak foundation” (p.97). The authors examine Ackerman’s self-described “constitutionalism dualism,” which “contemplates two types of politics: normal or ordinary politics and higher lawmaking or constitutional politics.” “Normal politics,” they explain, “is what goes on in Washington — and at the polls — year in and year out” (p.97). But “higher lawmaking” has occurred only three times in our history: during the founding period, during Reconstruction, and during the New Deal. This “higher lawmaking” is described as “a process of extended and thoughtful deliberation by a significant portion of the people,” during which “the people make a truly considered choice about the direction in which they wish the nation to go” (p.98). According to Farber and Sherry, Ackerman’s “most radical break with our constitutional traditions is to argue that the people’s consent need not be formalized into a written constitutional amendment to be binding on later generations” (p.98). Ackerman, they note, believes that Article V is not the exclusive way to amend the Constitution of the United States. He believes that de facto constitutional amendments can be made by popular action without resorting to the formal mechanisms provided in Article V. Again, according to Farber and Sherry, Ackerman believes that “we must retain the legacy of the New Deal — as interpreted and implemented by the Warren court — not because it is right or because we agree with it, but [*551] because the depression generation told us to do so” (p.100). This view is rejected by the authors because it is based on false premises — “that the eighteenth-century framers were constitutional dualists in the way (Ackerman) uses the term” (p.100); and that “later momentous constitutional changes (took place) in the dualist framework” (p.104).

Like the other scholars examined in DESPERATELY SEEKING CERTAINTY, Ackerman is accused of trying to further a substantive agenda with his methodological approach. As the authors note, “Ackerman has been unabashedly working toward constructing a constitutional justification for entrenching the Warren Court for years” (p.111).

The final scholar examined in this book is the prominent legal philosopher, Ronald Dworkin. Again, an important criticism of Dworkin is his substantive agenda. “Dworkin’s conclusions track the agenda of liberal judges like William Brennan” (p.122). Moreover, Faber and Sherry contend, “Dworkin’s views are clearly agenda-driven rather than grounded in constitutional history, text, or precedent” (p.137). But Farber and Sherry do not dismiss Dworkin for this “sin” alone. They analyze — and ultimately reject — Dworkin’s call for a “moral reading” of the Constitution by judges as being undemocratic. As they note:

Unless Dworkinian decisions can be firmly grounded in specific legal sources — such as a constitutional text or its legislative history, or precedent — judges seemingly have no more claim to be making those decisions than the average person on the street (p.134).

If one can (or chooses to) read only one chapter in DESPERATELY SEEKING CERTAINTY, it should be Chapter 8. That Chapter, titled “Dethroning Grand Theory” summarizes the arguments and criticisms of the first seven chapters. In it, the authors explicitly reject the whole notion of “a universal method of interpretation what will serve as a recipe for judges faced with any constitutional issue” (p.140). They describe the quest for a “grand theory” or “foundation” as “both fundamentally misguided and doomed to failure.” Throughout the book, they make powerful arguments as to why the particular “foundational” theories of the six scholars examined have failed. Throughout, however, a major premise is that “foundationalists” seek certainty. They ignore the “foundationalist” scholarship that seeks not absolute certainty but only to increase the degree of certainty to the extent feasible. Perhaps that is what they will address in their next book, which will “explore the implications of a pragmatist approach to constitutional adjudication” (p.x). I can hardly wait to find out.

REFERENCES:

Droddy, JD. 1999. “Originalist Justification and the Methodology of Unenumerated Rights.” 1999 The Law Review of Michigan State University Detroit College of Law 809-863.

Vermeule, Adrian, and Earnest A. Young. 2000. “Hercules, Herbert, and Amar: The Trouble with Intratextualism.” 113 Harvard Law Review 730.

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