Vol. 21 No. 7 (July, 2011) pp.434-438
KEEPING FAITH WITH THE CONSTITUTION, by Goodwin Liu, Pamela S. Karlan, and
Christopher H. Schroeder.
New York: Oxford University Press, 2010.
248pp. Hardcover.
$21.95/£13.99.
ISBN: 9780199738779.
Reviewed by Philip Shadd, Department of Philosophy, Queen’s University
(Kingston, ON). Email:
philip[dot]shadd[at]queensu[dot]ca.
Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder frame their argument
in KEEPING FAITH WITH THE CONSTITUTION by dividing existing theories of
constitutional interpretation into two camps, and by presenting their own theory
as a third option (pp.25-26). On
the one hand are theories that argue the constitution should be interpreted as
the original Framers would have understood it; on the other are those that argue
the constitution should be viewed as a “living tree.”
The theory proposed by the authors – “constitutional fidelity” – is
preferable to both because it recognizes that in order to be faithful to the
constitution, interpretations must account both for the principles of America’s
jurisprudential past as well as for the changing social contexts in which those
constitutional principles must now be applied.
Only in this way can the constitution remain a vital and democratically
legitimate document for future generations of Americans.
Although they initially frame their approach as an alternative to two
others, it becomes clear as the book progresses that the main position with
which constitutional fidelity is to be contrasted is Originalism.
Indeed, while one way in which the argument of the book might be
sharpened is to more clearly distinguish constitutional fidelity from “living
tree” approaches, one of KEEPING FAITH WITH THE CONSTITUTION’s main achievements
is the anti-Originalist argument it convincingly makes with reference to a host
of cases from American history.
The book breaks naturally into two parts.
The first two chapters provide a brief introduction to the history of the
American constitution and explain the theory of constitutional fidelity.
Chapters 3 through 9 illustrate the practice of this style of
constitutional interpretation with cases from American history.
The opening historical discussion includes a survey of relevant aspects
of the 1789 Constitution, of the Bill of Rights, and of the Reconstruction and
Post-Reconstruction Amendments. It
helpfully familiarizes the reader with many of the relevant constitutional facts
that will be under analysis for the rest of the book, and is part of what makes
the book a very readable and user-friendly volume.
Most of the work’s philosophical elaboration of the theory of
constitutional fidelity proceeds in Chapter 2.
According to this theory, the constitution must be understood as securing a
framework for America’s political institutions, a purpose that it can serve only
if it is understood to provide general principles that can flexibly be applied
in a variety of situations given changing circumstances and societal norms.
If the constitution is understood [*435] in the way of Originalism or
Strict Constructionism, it will be unresponsive to changing contexts, and, as
such, will cease to be either relevant or democratically legitimate.
The authors make the provocative point that in order to remain faithful
to the constitution, applications of the constitution must actually change
(pp.27-29). They are self-aware of
the counterintuitive appearance of this point; indeed, Originalists would attack
the authors for being unfaithful to the constitution precisely because they do
permit the constitution to be applied in ways that the original Framers neither
foresaw nor intended. Pace the
Originalists, Liu, Karlan, and Schroeder argue that, by following the approach
of constitutional fidelity, interpreters are faithful to the constitution
insofar as the constitution has always been intended to serve as a document that
would remain relevant to many future generations of Americans and to many
unforeseen circumstances.
As part of their argument for understanding faithfulness to the American
constitution in this way, the authors maintain that an essential desideratum of
constitutional interpretation is that the interpretation keep the constitution
vital. A constitution that is vital
is one that enjoys democratic legitimacy.
This desideratum of constitutional vitality is an intriguing proposal,
and one possible way in which constitutional fidelity might be distinguished
from “living tree” approaches.
However, as I will now explain, this issue of vitality and democratic legitimacy
is also one that the authors need to handle with greater precision and care.
In Chapter 2 and beyond, one of the most distinctive claims of the argument is
that constitutional interpretation must take into account “the evolving norms of
our society” (p.26). In the course
of the book, Liu, Karlan, and Schroeder give several examples of such changing
norms: the shift from disagreement over the wrongness of slavery to unanimity on
the wrongness of racism (chapter 3); evolving views on the rights of women and
gender equality (chapter 3); increased importance placed on the freedom to
criticize American military action (chapter 4); a greater appreciation of the
need for the federal government to play a role in regulating the economy
(chapter 5); an expanding view of the private sphere over which individuals
ought to be autonomous (chapter 9);
and more. By allowing these
changing norms to affect how the constitution is interpreted and applied, the
American public is able to “see the Constitution’s text and principles as its
own” (p.38). By reflecting the
current values of the demos, the constitution remains both democratically
legitimate and vital.
Liu, Karlan, and Schroeder need to be more careful in handling these issues of
vitality and democratic legitimacy because it is unclear what normative weight
they attribute to this aspect of constitutional interpretation.
Are they saying that it is normatively important for constitutional
interpretations to reflect contemporary norms whatever those present norms might
be? Or are they saying that it is
normatively important for constitutional interpretations to reflect contemporary
norms only when these norms are morally desirable?
They certainly should not say the former: to put the point crudely,
something is not right just [*436] because it is popular.
But if they mean the latter, they neither clearly state so, nor give any
argumentation on the grounds of which they could defend the latter.
There seems to be a clear difference here between the theory of
constitutional fidelity and Ronald Dworkin’s legal theory.
Dworkin is clear that law ought to be given its objectively best
interpretation, no matter the prejudices that might prevail in society at a
given time (Dworkin 1986). By
contrast, according to constitutional fidelity, while a constitutional
interpretation that countervails the prejudices of society at a given time might
better serve the broad values of liberty and equality, such an interpretation
would seem to do so at the expense of the constitution’s vitality and democratic
legitimacy. They note that
constitutional interpretation involves “both countermajoritarian and
majoritarian elements” (p.25), but give little guidance as to how such
countervailing elements are to be brought into balance.
Following the first two chapters, most of the rest of the book (Chapters 3
through 9) paints a persuasive and richly illustrated picture of the general
trajectory of American constitutional interpretation.
The illustrations include many of the most celebrated cases in American
history: BROWN v BOARD OF EDUCATION, REYNOLDS v SIMS, BRANDENBURG v OHIO, and
many others. Such decisions
illustrate Liu, Karlan, and Schroeder’s theory, being examples of constitutional
interpretations that have been made in response to social movements and to
changing technological and material circumstances, and that thereby remain
faithful to the constitution by keeping it a vital expression of shared American
values. In Chapter 3 on Equality,
for instance, they explain that the rejection of a “separate but equal”
interpretation of constitutional equality was motivated by an appreciation of
actual social circumstances in which Jim Crow laws had the effect of
perpetuating inequality rather than securing equality for black Americans.
In Chapter 4 on Free Speech, they argue that Americans’ present
understanding of the right to free speech – as a right that defends extensive
criticism of U.S. military action – did not come about by analyzing original
meaning, but by national experiences in which government suppression of dissent
unduly infringed on Americans’ freedom to protest and unjustly convicted
protestors who were later pardoned.
Chapter 5 connects post-LOCHNER era regulation of the economy by the federal
government with a society that increasingly appreciated the need for such
regulation and that groaned under the inequalities of an unfettered market; and
Chapter 6 shows that American presidents have long respected the principle,
based in the constitution, that executive power needs to be checked by other
branches of the government in times of crisis even when the crises to which
presidents respond are different from those in the past.
The American Supreme Court has practiced constitutional fidelity by interpreting
constitutional clauses, such as the Equal Protection Clause, so as uphold
reapportionment laws that respond to changing demography; this is the message of
Chapter 7. The Court’s MIRANDA
ruling is another example of constitutional fidelity, being an appropriate
application of the Fifth [*437] Amendment in a setting where law enforcement is
carried out in a decidedly different way than it was at the time of the
constitution’s framing (Chapter 8).
Final examples of constitutional fidelity include ROE v WADE, GRISWOLD v
CONNECTICUT, and LAWRENCE v TEXAS, all of which are explained as appropriate and
flexible applications of the constitution’s promise of liberty in light of
contemporary social mores (Chapter 9).
The book concludes with a chapter inviting us to apply constitutional
fidelity in light of contemporary issues such as emerging technologies and the
environment.
Chapters 3 through 9 are descriptively rich, and the facts of changing social
attitudes and gradually evolving jurisprudence are undoubtedly accurate.
Moreover, the suggestion that social movements have influenced judicial
interpretations of the constitution is persuasively made with reference to many
historical examples. So too is
their claim that, in the real-world, judicial interpretation of the constitution
is not simply a mechanical process of discerning original meanings, but is a
combination of history, of judgment, and of responding to social contexts.
Constitutional fidelity’s appreciation of the multi-faceted nature of
actual constitutional interpretation is certainly one of the theory’s strengths.
Indeed, as an account of how judges and others actually do interpret the
constitution, constitutional fidelity is well-defended; and as an account of how
Americans actually have interpreted the constitution throughout history, there
is much to commend the theory. To
reiterate, however, while Chapters 3 through 9 are compelling descriptively,
Liu, Karlan, and Schroeder could do more to explain what normative lessons are
to be drawn from these examples.
One other aspect of the book that should be noted is that the discussion
throughout is focused exclusively on the American context.
The only constitution referred to is the American one, and all of the
legal examples are drawn from American jurisprudential history, likely lessening
of the value of the book as a teaching tool in other national contexts.
As well, the American focus of the book undermines constitutional
fidelity’s status as a general theory of constitutional interpretation.
Is it, for example, equally applicable in other social contexts where
social movements do not serve liberal democratic ends?
There are likely normative lessons to be learned from the book’s argument
that could be applied in other contexts, but these applications would require
work beyond that taken up in this volume.
In sum, KEEPING FAITH WITH THE CONSTITUTION provides a clearly written,
succinct, and compelling analysis of the historical trajectory of American
constitutional interpretation. It
develops a panoramic view of jurisprudence that effectively ties together a wide
variety of complex cases and decisions into a coherent whole.
The thesis that many of America’s most cherished understandings of the
constitution cannot be explained by Originalism, but only by a constitutional
theory that recognizes the way in which evolving social norms affect
constitutional interpretation, should secure wide agreement.
The book’s shortcomings lie primarily in the comparatively little
attention it gives to sustained philosophical argumentation for constitutional
fidelity as a normative [*438] doctrine.
As such, while this volume will likely leave philosophically-oriented
lawyers and legal theorists wanting more, those who have more of an eye to the
history and practice of American constitutional interpretation should find it
very satisfying.
REFERENCES:
Dworkin, Ronald. 1986.
LAW’S EMPIRE. Cambridge, MA:
Belknap Press.
CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, , 347 U.S. 483 (1954).
BRANDENBURG v. OHIO,
395 U.S. 444 (1969).
GRISWOLD v. CONNECTICUT, 381
U.S. 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
REYNOLDS v. SIMS, 377 U.S. 533 (1964).
ROE v. WADE, 410 U.S. 113 (1973).
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© Copyright 2011 by the author, Philip Shadd.