Vol. 7 No. 9 (September 1997) pp. 454-456.

THE CONSTITUTIONAL DIVIDE: THE PRIVATE AND PUBLIC SECTORS IN AMERICAN LAW by William P. Kreml. Columbia, South Carolina: University of South Carolina Press, 1997. 224pp. Cloth $29.95. ISBN 1-57003-111-8.

Reviewed by Ken I. Kersch, Department of Government, Cornell University.

Political scientist Elmer Schattschneider once placed strategic efforts to define the scope of conflicts at the core of politics. If this is politics, then it is William P. Kreml's contention that constitutional scholarship is all too full of it. Is a certain policy the proper province of the national or the state governments, of the legislatures or the courts? In both the institutionally-focused questions they ask and the responses they contrive, Kreml asserts, scholars like Alexander Bickel and Laurence Tribe are less out to describe and explain than to advance opportunistically some contempor-ary political agenda. The result is a field in which the most well-plowed furrows hardly scratch the surface of the real forces driving constitutional development.
In THE CONSTITUTIONAL DIVIDE, Kreml proposes a non-institutional focus that he unsuccessfully argues has more bottom: "the single most differentiating line within all of Anglo-American jurisprudential history, and within the U.S. constitutional experience, has been the line between the private and public sectors." (3). Canvassing the entire course of Anglo-American constitutional history, from Runnymede to the early Rehnquist Court in seventeen very short chapters, Kreml charts the interplay between the private/public and what he calls the ideological, institutional, and cognitive dimensions. His ideological dimension roughly approximates the contemporary American liberal-to-conservative affinities. The institutional dimension refers to the familiar separation of powers and federalism concerns. The cognitive dimension -- which spurs the author to flights of dense social science jargon -- is divided into the analytic and synthetic (a corruption of Kant?), the former implying self-enclosed, static, and bilateral thinking impervious to larger social questions and the latter a more open and public-regarding approach to, for example, the construction of a contract.
In this book, the ideological and institutional dimensions are mostly background noise, a bow to the usual currents of discussion. Kreml's method is to take a few well-known Supreme Court cases from each era in the Court's history and show how they illustrate the tension between the private/analytic and the public/synthetic (his separate cognitive and private/public dimensions readily collapse into a single category). It soon becomes apparent that Kreml doesn't think much of the former category, and is intoxicated by the latter, asserting, for instance, that "historical progress is only accomplished by first understanding, and then implementing, what in its form is a synthetic cognition, a more complex idea followed by a more complex material reality." (193-194).
The author's psychological approach to law is not without precedent. Kreml's categories bring to mind William James's "tender-minded" and "tough-minded" distinctions, which were enlisted in the fight against legal formalism by the psychology-based wing of legal realism. This approach reached its full flower in 1930 with the publication of Jerome Frank's LAW AND THE MODERN MIND (neither James's work nor Frank's book is referenced by Kreml). Conceptually, Kreml's work is an odd throwback to this earlier scholarship, but shorn of its timeliness, James's brilliance, and Frank's wit and panache.
The author's preference for the public motivates the intellectual legerdemain at the heart of this book: Kreml simply defines opinions with which contemporary liberals are cozy as triumphs of complex, synthetic (or public) thinking, and bad conservative arguments instances of narrow, analytic (or private) thinking, with the categories "public" and "private" tossed about like toy cars in a Godzilla flick. Thus, BAKER V. CARR (1962) is served up as a clash between the urban "public interest" and the rural "private interest." ROE V. WADE (1973) is a triumph of the "public need" (154) on behalf of "the majority that could never act as a majority [i.e. women]" (164) against "private-morality-inspired laws" (152) established by "timid or indolent legislatures." (153). And so on .... While some readers (though not the more historically sensitive) might overlook this sleight of hand when Kreml is comparing Justice Taney's 1837 opinion in CHARLES RIVER BRIDGE V. WARREN BRIDGE with John Marshall's contract clause decisions, they will undoubtedly become much more edgy as the debris starts flying closer to home.
For all its (brief) stops along the way, the historical narrative Kreml offers is, in its essentials, quite simple. First he asserts (wrongly, I think) that scholars have neglected the influence of English common law on American legal history. He observes that common law was traditionally conservative in its protection of private interests, with the signal exception of the great common law judge, Edward Coke, who "[lent] the private law's reason to public law" by taking synthetic, social considerations into account in his decision making. In DR. BONHAM'S CASE (1610), Coke, for example, held the injustice arising when a man was permitted to serve as a judge in his own case to be contrary to the common law. Like Coke, Earl Warren too took issues of social policy into consideration to arrive at decisions that were socially just. Thus, Warren was a latter-day Coke and a true common law traditionalist who (in a metaphor used repeatedly in the book) "rebalanced" or "adjusted" the sort of private/analytic versus public/synthetic imbalances that crop up throughout constitutional history. The result was yet another milestone in the long march of justice and progress.
To buy this argument, of course, you must agree with Kreml on what "balance" or "justice" is in any given case; and since the author's deployment of psychological categories permits him to pass off his conclusions as cognitive facts rather than as political assessments, he doesn't much stoop to conquer. At the heart of the Coke comparison is an endlessly asserted equivalence between the justice meted out by Coke in DR. BONHAM'S CASE, which involved a core principle of legality, and so-called liberal Supreme Court decisions on abortion, criminal procedure, and busing. If this facile equivalence doesn't bother you, and if you think the Warren Court was so plainly right as to be beyond discussion, this may be the book you will want to have handy to defend yourself against the charge that you are not a common law traditionalist.
But, then again, maybe not. For even if our opinions concerning what is just or "balanced" overlap perfectly with Kreml's, you cannot draw deeply from the author's well. THE CONSTITUTIONAL DIVIDE is very thinly cited, the chief sources being the Court's major cases themselves, often sloppily and superficially read. Kreml's source on legal realism is mostly Jerome Frank's COURTS ON TRIAL. His four and a half pages on women's rights don't mention any issue besides birth control and abortion (and only two cases, GRISWOLD and ROE). The book, moreover, is written in apparent ignorance of much of the relevant legal and historical literature. This leads Kreml to repeatedly make sweeping claims with little or no evidence. The author, for example, in a single sentence peremptorily asserts that Coke's influence on the American Founders was greater than that of both Locke and the events taking place at the time of the American Revolution -- his only source being a parenthetical notation that Gary Wills has concluded that Locke was unimportant to the Founders. (Kreml's assertion is all the more tenuous if one recalls, as he does not, that the essentials of Coke's holding in DR. BONHAM'S CASE were prominently reprised in Locke's SECOND TREATISE). Kreml's defense of the Warren Court that argues that it opened the political process ("the courts had to come first" because of "the failure [to do what's needed] of the self-regulating nature of the two constitutionally political branches of the government.") (128) makes no reference to John Hart Ely's DEMOCRACY AND DISTRUST, which systematically advanced the same view nearly twenty years ago. Ely's book had the virtue of approaching the Warren Court as a problem. Kreml simply asserts that that Court pursued "ideas whose time had come" and that its efforts "were well received." (141).
Nor can one whose political reflexes match Kreml's trust even the author's most casual assertions of historical fact. For example, he twice refers to Charles Evans Hughes as the Justice whose 1937 "switch-in-time" signaled the Supreme Court's acceptance of the New Deal (it was Justice Roberts); he credits a 1993 book by Bernard Schwartz as first applying the label "Four Horsemen of the Apocalypse" to the New Deal holdouts on the Court (it was contemporaneous); and he refers to the prominent Grant-era politician Roscoe Conkling as "Richard." Kreml characterizes Oliver Wendell Holmes as a democratic progressive and lover of the common man in part based on an astonishing misrepresentation of Holmes's LOCHNER dissent (only one of the most famous opinions in American legal history) in which Kreml falsely contends that Holmes "decr[ied] the lengthy hours of a bakery worker." (95).
Aside from its conceptual flaws, this book is so full of factual errors, unsub-stantiated assertions, and faulty reasoning that it is bereft of scholarly authority.
America's constitutional development may very well be profitably understood by focusing on the division between the public and private sectors, a division rooted, in part, in English constitutional history: the thesis is both plausible and provocative. Those interested in exploring it, however, should start with the recent work of James Stoner (Stoner, 1992). Neither professional nor lay readers will suffer any detriment by skipping altogether William Kreml's CONSTITUTIONAL DIVIDE.

REFERENCES

John Hart Ely. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.
Jerome Frank. 1970. LAW AND THE MODERN MIND. Gloucester, MA: Peter Smith.
James R. Stoner, Jr. 1992. COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Lawrence: University of Kansas Press.