MATTERS OF PRINCIPLE: LEGITIMATE LEGAL ARGUMENT AND CONSTITUTIONAL INTERPRETATION by Richard S. Markovits. New York: New York University Press, 1998. 432 pp. Cloth $50.00. ISBN 0-8147-5513-5.

Reviewed by Mark A. Graber, University of Maryland at College Park. Email: mgraber@bss2.umd.edu.

 Fashionable scholars claim to be unfashionable. Conservatives assert they take great risks when they make "politically incorrect" observations in THE NATIONAL REVIEW. Liberals purport to prove their courage by boldly defending modified affirmative action policies in THE NATION. That Professor Richard Markovits of the University of Texas Law School similarly declares "the approach of [his] book is not fashionable" (p. x) is hardly surprising. To claim otherwise would not be fashionable. In fact, the text is primarily devoted to refining the theory of constitutional argument laid out in the early works of Ronald Dworkin, hardly a radical project. Still, Matters of Principle is written with an unfashionable rigor that make that book far more interesting and worthy of study than recent tomes produced by celebrity constitutional theorists.

Professor Markovits proposes "an anthropological, secular version of natural-law jurisprudence" that will "yield internally-correct answers to all legal questions" (p. 1). The answers are internally correct because they can be deduced from the basic moral commitments of American constitutionalism. Whether these answers follow from more universal moral standards, Matters of Principle asserts, is not relevant to legal argument. Indeed, Professor Markovits believes that such appeals to external norms constitute the serious flaw in Dworkin’s more recent writings. What matters are the actual moral commitments of American society, though presumably these actual commitments are good enough to justify maintaining American constitutionalism.

Matters of Principle maintains that the fundamental moral principle underlying American constitutionalism is that "each creature that has the neurological prerequisites to become and remain an individual of moral integrity is entitled to appropriate, equal respect and appropriate, equal concern for its actualizing its potential to become and remain an individual of moral integrity (p.3). Citizens, Professor Markovits asserts, do have different "personal ultimate values" (p. 11) that prescribe what people ought to do in different circumstances. Nevertheless, he believes that Americans have historically accepted a particularly liberal understanding of what persons and governing officials are morally obligated to do in different circumstances. This consensus understanding of moral obligation, and not differing view of the good life, provide the foundations for American constitutionalism. In particular, Professor Markovits maintains that the constitution should be interpreted consistently with this commitment to equal concern and respect, unless text and history clearly require another alternative policies. We are probably stuck with the Senate, but on most other issues, deductions from this understanding of moral and governmental obligation play a greater role than more traditional legal logics in constitutional analysis. Many political scientists properly question whether traditional legal logics play prominent roles in much contemporary scholarship. Still, Professor Markovits should be credited for being more open than many of his peers about how constitutional conclusions should be reached.

Matters of Principle is a serious, sometimes too serious, work of scholarship. No stone is left unturned in the effort to describe the standards legitimate legal arguments must meet and then to meet those standards. When discussing the numerous conditions for legitimate legal argument, Professor Markovits is far more willing than many of his legal peers to admit that having a law degree (and in his case both law and economics degrees) does not make one a universal expert on every matter that might be considered in constitutional law. Matters of Principle is refreshingly free of the selective citation and evidence manipulation that characterizes much legal writing. When discussing constitutional history, for example, Professor Markovits reminds readers he is not a professional historian, lists every work he has read on the subject, makes an argument that these works support his version of liberalism, but recognizes that more research needs to be done by better qualified scholars to confirm his suspicions. On substantive issues, he pays as much attention to the evidence needed to make certain conclusions as to the proper inferences from presently available evidence. Matters of Principle lapses from this welcomed ecumenicism only when asserting that law professors are likely to do certain forms of moral philosophy better than professional moral philosophers. Perhaps special normative rigor is necessary to have one’s moral speculations accepted by law review editors, many of whom have never taken a philosophy class or read a work of moral philosophy.

Unlike too many recent works of grand constitutional theory, Matters of Principle is not a campaign tract for a federal judgeship. Professor Markovists does more than defend those positions and only those positions advocated by his favorite political groups. The author is a political liberal, but does not back away from what he believes to be liberal commitments when those commitments may seem radical or even wacky. This is a critical work, not an apology for the Democratic left. Matters of Principle defends such standard liberal Democratic party fares as legal abortion, gay rights, and affirmative action, calls for the abandonment of the state action doctrine, supports a far wider array of constitutional welfare and educational rights than more politically conscious liberal law professors have been willing to endorse, and advocates a constitutional right to polygamy. The latter will remove Professor Markovits from the list of judicial wannabees, but makes Matters of Principle far more interesting to read than legal literature which stops short when the going gets politically rough. What is truly unfashionable in the work is less the form of argumentation than the serious analysis of what a commitment to a certain form of liberalism really requires. Few works of constitutional theory do more to challenge a reader’s intellectual assumptions.

Two features of the work, however, may prevent the Matters of Principle from being taken seriously. The book desperately needed better editing. While his desire for rigor is admirable, Professor Markovits should have resisted his compulsions to list five areas of agreement and six areas of disagreement with seemingly every law professor or philosopher who has written on a constitutional subject. Such lists consume almost half the book. The result is a good deal of repetition and a failure to defend certain vital points at greater length. The one-hundred page chapter where Professor Markovits lists his areas of agreement and disagreement with almost every major constitutional thinker and philosopher, for example, could have been reduced to about twenty pages or integrated into other chapters. Similar sections in other chapters would have benefited from extensive use of a red pencil.

Curiously, two of the best sections in Matters of Principle effectively demonstrate how poor writing handicaps much legal analysis. Professor Markovits correctly observes how equal protection analysis has been weakened by analysis that uses "discriminate" without clearly indicating that the word has "both pejorative and non-pejorative uses" (p. 266). Other phrases commonly used in Fourteenth Amendment cases are given similarly powerful critiques. Unfortunately, having used so much space listing agreements and disagreements with other scholars, the book runs out of room to continue this more interesting line of analysis.

Matters of Principle may also not be taken seriously by political scientists because Professor Markovits does not take political scientists seriously. The book blithely ignores political science scholarship relevant to both the theory and practice of American constitutionalism. To be fair, this criticism could and has been made of most constitutional speculations published by academic lawyers. Perhaps political science journals should consider placing the following boilerplate language at the end of essays reviewing legal writing:

This is not acceptable scholarship. The author may be familiar with the relevant law review literature, but demonstrates no knowledge or interest in important political science or [list specific disciplines] work that supports, modifies or challenges crucial assertions in the book. No one expects that authors will read everything published anywhere that might be of some value to their claims, and most scholars appropriately pay special attention to work and thinkers in their home discipline. Nevertheless, scholars are expected to be familiar with all major scholarship relevant to their work, particularly scholarship published by the most prestigious university presses and disciplinary journals. Law professors who wish to be scholars must be held to this same standard.

To the credit of Professor Markovits, the internal evidence strongly indicates that his failure to consider the relevant political science scholarship was the consequence of an unfortunate legal habit rather than any sincere disinterest. Matters of Principle has much to contribute to an interdisciplinary dialogue on American constitutionalism, but the author can hardly complain of not being heard until he is more willing to listen.