Saying what the Law is: The Constitution in the Supreme Court.

Vol. 14 No. 7 (July 2004), pp.517-519

SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT, by Charles Fried. Cambridge: Harvard University Press, 2004. 336 pp. Cloth. $29.95 / £19.95 / € 27.70. ISBN: 0-674-01302-6.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff@desu.edu

Relying on his experience as a law clerk, practicing lawyer, law school professor, Solicitor General of the United States, and Associate Justice of the Supreme Judicial Court of Massachusetts, author Charles Fried presents a timely analysis of the main topics of American constitutional law. Though containing unifying themes, constitutional law “is a human and political creation; tensions and contradictions, gaps and questions on the way to answers are inevitable” (p.x). Fried taps a plethora of classic and contemporary cases to illustrate the complexities and coherences inherent in constitutional interpretation by the Supreme Court.

Chapter 1 tackles the question of doctrine. While many scholars believe that the Supreme Court does not adhere to rules and principles constituting doctrine, Fried disputes that view. He identifies the text of the Constitution and prior court opinions as sources for doctrine. Respect for precedent provides continuity, a key component of doctrine which is predictable and which persists. Only when doctrine is applied by judges over time and on broad subjects does it have the capacity to affect the social order.

Chapters 2 details the concept of federalism, the balance between national and state power. On the one hand, the federal perspective is buttressed by the utilization of the Constitution’s necessary and proper and commerce power clauses. On the other hand, the states have authority to limit national power through the Tenth and Eleventh Amendments. Fried contends that the sovereign immunity claim emanating from Eleventh Amendment jurisprudence has been largely discredited.

The separation of powers principle is the subject of Chapter 3. Traditionally, this concept has been understood through the vesting clauses of Articles I, II, and III of the Constitution. Notwithstanding the apparent clarity and comprehensiveness of Congress’ enumerated responsibilities, the other branches of American national government have influential roles as well. For one, the modern administrative state imbues its officers with executive, legislative, and judicial powers. Second, the president’s retaliatory powers more than compensate for the dearth of clearly defined ones. Third, the independence of the judiciary, enabled by judicial review, means that courts must be called upon to determine what the law is. Fried traces the history of cases involving the president’s removal power to demonstrate how the courts have adapted to changing circumstances.

The First Amendment speech and religion clauses are discussed in [*518] Chapters 4 and 5, respectively. Speech must be judged by the burdens placed on it by government. Fried advances permissible and impermissible government purposes for restricting speech. He searches for regularity in speech cases by covering topics such as defamation, commercial speech, and Internet communication. He states that the First Amendment religion clauses have perpetuated “jurisprudence more tense and unstable than free speech doctrine” (p.144). For instance, the free exercise area is typified by inconsistent decisions, while establishment cases rely on a canonical test which is relatively useless, according to the author.

Chapter 6 probes constitutional law associated with liberty and property. The positioning of the due process clause in the Fifth Amendment suggests that “it was meant to stand as a general guarantee of procedural regularity in legal proceedings that might result in fines, confiscations, imprisonment, or sentences of death” (p.171). When due process is employed to judge the substance of law, its meaning becomes blurred, according to the author. The takings clause of the Fifth Amendment is compared to the contracts clause in Article I. Whereas the takings clause allows government to claim eminent domain in certain instances, the contracts clause is unconditional. Cases advancing the notion of fundamental liberty rights are based on a compendium of constitutional sources, including the rights enunciated in the First Amendment, the liberty clauses as part of the due process guarantees found in the Fifth and Fourteenth Amendments, and privacy expectations derived from the Third and Fourth Amendments.

The equal protection clause of the Fourteenth Amendment is the subject of Chapter 7. Although application of the latter clause has led to classifications of persons by race and gender, other categories such as age, disability, and income have generally not been included. However, even protection afforded to racial minorities is limited, as seen from contradictory Supreme Court rulings on affirmative action and decisions which have rejected the procedure of realigning congressional districts based on racial composition.

In the final chapter, Fried warns against using transitory labels to depict splits on the Supreme Court. Rather, he describes voting blocs in terms of support or opposition to Progressive tradition programs. Though this division is unlikely to cause a revision in constitutional doctrine, there is the possibility that a new approach could do so, thereby challenging stare decisis.

Fried’s study may be compared to two books which attempt to evaluate the place of constitutional law within the American political system. In his 1993 book, THE PARTIAL CONSTITUTION, Cass Sunstein argues that “the Constitution does not mean only what the judges say it means. On the contrary, the Constitution has often served as a catalyst for broad public deliberation about its general terms and aspirations” (p.vi). In his 1994 work, THE CONSTITUTION IN THE COURTS, Michael Perry advocates for constitutional adjudication which is “both law and politics. It is both authoritarian and pragmatic, both backward-looking and present-oriented and future-looking” (p.204). Whereas the Sunstein book covers issues dealing with [*519] freedom of speech, the Perry text concentrates on Fourteenth Amendment interpretation.

The Fried book is quite up-to-date, as it discusses the 2003 University of Michigan decisions on affirmative action together with the same-sex marriage controversy. Despite the author’s intended audience, the book is most applicable to an academic clientele, whether it is a law school or upper division undergraduate law class. Organizationally, the chapter on liberty and property tries to accomplish too much; it should be divided into two separate sections. Though—as the author admits—SAYING WHAT THE LAW IS is “neither a treatise nor a reference work” (p.ix), it is valuable for its focus on the mechanics and impact of Supreme Court decisions.

REFERENCES:

Perry, Michael J. 1994. THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? New York: Oxford University Press.

Sunstein, Cass R. 1993. THE PARTIAL CONSTITUTION. Cambridge: Harvard University Press.

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