OUR ELUSIVE CONSTITUTION: SILENCES, PARADOXES, PRIORITIES
by Daniel N. Hoffman. Albany N.Y: State University of New York Press, 1997. 297 pp.
Paper $19.95. ISBN 0-7914-3502-4
Reviewed by Don Crowley, Department of Political Science, University
Daniel Hoffman’s book is a thought provoking inquiry into the meaning of the Constitution in modern American politics. Hoffman begins from the premise that while much of American constitutional theory today is irrelevant "to the ongoing political life of our society," (p.1) a discourse "that participants can find meaningful, principled. and fruitful" (p.7) is essential to the well being of our constitutional polity. Hoffman argues that for a constitution to work it must express a consensus on fundamental principles. His faith is that a fresh inquiry into what he terms the Constitution’s "silences, paradoxes, and (largely implicit) priorities" can help to promote such a consensus.
Such a lofty goal certainly presents a daunting task in our cynical age. While Hoffman’s undertaking undoubtedly falls far short of creating the consensus on fundamental principles he finds necessary, those who have grappled with the ambiguities of constitutional interpretation will find much to admire in Hoffman’s efforts. Hoffman’s work skillfully blends contemporary political theory with a broad understanding of the Supreme Court’s constitutional decisions.
Hoffman’s inquiry is complex and certainly not written for an undergraduate audience. Indeed the book assumes a fairly sophisticated understanding of constitutional decision making and American politics. The book is organized into three parts. Part I generally explores the law-politics dichotomy in judicial decision making, Part II focuses on the tensions between the liberal principles of individualism and what Hoffman terms the expansionary logic of nationalism, while Part III seeks to develop a theory of personhood and suggests what such a theory demands in the way of individual rights. Granted that such an organizational structure is not typical of most explorations of constitutional interpretation, Hoffman nevertheless manages to touch on many concerns important to constitutional scholars.
The first two chapters center on the Court's use of the political questions doctrine and the extent to which the Constitution can be seen as offering coherent principles of fair representation. Here Hoffman argues persuasively that the Court has never articulated a consistent basis for the political questions doctrine and that the doctrine is not necessary to protect the Court against charges that judicial review is undemocratic. The fact that the Constitution doesn’t provide clear answers to fundamental questions is not grounds for the Court to stay out of the dispute. For Hoffman, constitutionalism, at the very least, demands a commitment to stable procedures and agreed upon ways of proceeding. For this reason Hoffman rejects arguments that suggest the Court should stay out of representation questions on the grounds that "the Constitution contains no coherent, justiciable standard of fairness in representation." (p.66). Leaving such debates to be decided by ordinary political processes on the grounds that they are more democratic is naive "since ordinary politics itself is often far from democratic." (p.76). Although Hoffman may be right that if the Court opts out of dealing with representation questions it tends to bias the result towards those who already possess political power, such an argument provides no answer to how the Court is supposed to resolve such disputes. On this question Hoffman is as elusive as the Constitution.
In the middle section of the book Hoffman seeks to analyze "the institutional implications of nationalism and imperialism" with particular emphasis on the expansion of Presidential power and what this means for the rule of law and civil liberties. Hoffman does a convincing job of debunking the "myth of Presidential Prerogative" and its inconsistency with the constitutional principles of separation of powers and limited government. However, this isn't his real goal here. More generally Hoffman wants to explore to what extent the Constitution provides a useful guide in determining what activities governmental entities may pursue in the public interest. He asserts that for the Constitution to be meaningful to the nation's political life it must "express some vision of the public interest and the governmental responsibilities that flow therefrom." (p.129). Hoffman then embarks on an interesting discussion of the frequently ignored question of what constitutes a "compelling government interest." However, Hoffman unsurprising conclusion is that the Constitution can’t really provide much meaningful direction about what we as a polity should do. As in the discussion over representation, Hoffman clearly believes that the Court shouldn’t abandon the field to ordinary politics in determining such issues. Still, Hoffman isn’t particularly enlightening in clarifying when and in what ways the Court should intervene.
In the final section of the book Hoffman turns his scrutiny to individual
rights: how we should decide which ones are fundamental and what rights
should exist that aren’t yet recognized. For Hoffman, a principled approach
to rights should flow from a clear concept of personhood. He claims that
While this reviewer doesn’t have any objection to Hoffman’s list of rights that we need, it isn’t hard to imagine some readers who would. Is Hoffman’s account likely to persuade those who start with very different background assumptions about the prerequisites for meaningful participation in American life?
Probably not. The prevailing tension in Hoffman’s work lies in his belief
that a fairly high degree of societal consensus on fundamental principles
is necessary if the constitution is to play an essential role in American
political life, coupled with his observation that "our political culture,
along with the Constitution’s silences and paradoxes make it difficult
for us to agree upon the rudiments of a positive national agenda." (p.
232). How is this consensus supposed to come about? Hoffman’s claim is
that attention to constitutional discourse can help keep us aware of our
"deepest commitments as a people." (p.234) Ultimately this boils down to
an existential faith that we are better off proceeding as if such arguments
matter. Hoffman’s final position is strikingly similar to Seidman and Tushnet’s
in REMNANTS OF BELIEF (1996) where they assert that adherents of "skeptical
commitment" are "obligated to construct meaning even when we know that
it does not exist--to proceed as if constitutional rhetoric were meaningful,
even when we know that it is not." (Seidman & Tushnet: 200). This skeptical
commitment may be essential if we are to continue to do what we do. Whether
such discourse helps to develop and nourish societal consensus is a different
Louis M. Seidman and Mark V. Tushnet. 1996. REMNANTS OF BELIEF: CONTEMPORARY CONSTITUTIONAL ISSUES. New York: Oxford University Press.