American Constitutional Interpretation

Vol. 15 No.8 (August 2005), pp.690-694

AMERICAN CONSTITUTIONAL INTERPRETATION (3rd ed), by Walter F. Murphy, James E. Fleming, Sotirios A. Barber, and Stephen Macedo. NY: Foundation Press 2003. 1651 pp. Cloth $96.50. ISBN: 1566629691.

Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu .

In its third edition, Murphy’s, Fleming’s, Barber’s, and Macedo’s AMERICAN CONSTITUTIONAL INTERPRETATION remains much more than a collection of important legal cases in constitutional law. Students using it will certainly learn the details of landmark decisions of the United States Supreme Court and significant opinions of individual justices. But serious users will also learn much more—to read closely, to allow one’s close reading to be guided by broader, theoretically significant questions, and to look beyond words and arguments to consider aspects of government, politics, and polity that are constituted by those words and arguments. The editors offer a cogent and integrated set of essays, cases, and materials that achieve their purpose of encouraging students not only to understand the output of constitutional interpretation, but also to “come to understand how that enterprise of interpretation works, or fails to work, to help us collectively articulate, justify, and enforce the fundamental principles and rules that guide our common public life” (p.21). This casebook, then, is an invitation to think about constitutions in a broad and expansive way, and in their social, political, and cultural context.

The editors develop and apply throughout this volume a general framework that examines the ways in which constitutional interpretation expresses dual political theories of representative democracy and constitutionalism. The framework recognizes how these theories are sometimes in harmony, while at other times they are in tension, and it explicitly seeks to link the constitutional text and legal doctrine produced by its interpretation to politics and broad normative questions about the good society raised in political theory. The editors summarize the approach as follows: “Constitutional interpretation is, perhaps inevitably, informed by political theory, usually produces legal doctrine, and always interacts with and sometimes changes other forces in the political system. In turn, those forces act on the interpretive enterprise, sometimes changing the decisions it yields, sometimes modifying the nature of that enterprise, and occasionally reshaping the polity itself” (pp.v-vi).

The framework is then explored through the skillful deployment of three central questions. WHAT is the constitution that is to be interpreted? WHO may authoritatively interpret it? And, HOW is it to be interpreted? Placing the three interrogatives in capital letters is a convention used in the casebook to organize analyses and highlight the importance of these questions and the ways in which they interact with each other. These questions, and the interactions among them, are then used [*691] to address legal cases, decisions, and materials in many of the standard substantive legal areas in constitutional law, from federalism and separation of powers to civil rights and civil liberties. Three of the five major sections of this casebook are devoted to exploring each of these questions in depth. These sections are preceded by useful chapters that place constitutional interpretation in the context of political theory and central operating features of the American political system. Two introductory chapters precede all of these parts and discuss some basic concepts for studying constitutional law and provide guidelines for closely reading and briefing cases. A final section of the book explores constitutional interpretation in times of crisis and emergency. This sophisticated casebook operates simultaneously on several different levels. It asks and explores broad questions of theory, links these to fundamental questions of constitutional interpretation, and applies both to concrete cases of constitutional practice. Because the book’s approach is so sophisticated and multilayered, students will find it very challenging and teachers will need to make certain from class to class that students fully understand the intricacies of the materials and their interconnections. This seems a fair price to pay for such a richly multifaceted examination of law, interpretation, and political practice.

Throughout this volume, students are encouraged to think, both broadly and deeply, about each of the three central questions and the ways in which they interact. The editors accomplish this goal in several ways. Essays preceding the presentation of cases and materials in each chapter outline and then discuss in detail various possible answers to the questions posed. For example, the question of WHAT is the constitution may be answered by focusing on such things as the written text, interpretations of that text, tradition, common usage, and political theory, among other things. The question of WHO shall interpret is also approached broadly, going beyond courts and judges to public officials, political institutions, and private citizens. Among other answers to the question of HOW the constitution should be interpreted, the editors discuss originalism, textualism, structuralism, doctrinalism, and philosophical approaches.

The possible answers to the questions of WHAT, WHO, and HOW are then explored concretely through examination of diverse cases and materials. These include standard landmark decisions of the Supreme Court, a few recent decisions of lower federal and state courts on such issues as “enemy combatants” in the war on terrorism and proposals for same-sex marriage, and a fascinating array of non-Court case materials, including excerpts from essays written by judges, justices, and legal academics, selections from the Federalist Papers, congressional debates, the Southern Manifesto, Alabama’s Nullification Resolution, congressional resolutions authorizing the use of military force in Iraq (both in 1991 and 2002), and hearings on judicial nominations, among other things. This diverse selection of materials demonstrates to students how important forms of constitutional interpretation take place outside of courts, especially among state and federal political elites. These materials are usefully and often deeply interrogated through questions that follow each separate reproduction, [*692] encouraging students to practice skills of critical thinking. Legal cases, judicial opinions, debates among political leaders, and arguments among justices and legal academics outside of the courtroom are all employed to explore broader questions of philosophy and political theory. The editors are careful to ask good questions without providing their own answers. In the preface, they write: “Rather than present a party line about correct answers to the basic interrogatives or specific issues of constitutional interpretation and law, we have tried to offer readers a range of arguments for differing responses” (p.viii).

The editors do seem to take a position on the utility of constitutional democracy and see it as developing in increasingly progressive ways throughout the history of the United States. Throughout the volume, the essays, materials selected, and commentary provided on these materials suggest a deep and abiding reverence for principles of constitutional democracy and an understanding of its historical trajectory as a steady movement in the direction of enhancing its central values. In their assessment of historical trends, they write: “The most dramatic changes have involved democratization not merely of government but of the entire society. The political and social cultures of the nation have become far more egalitarian; the right to vote has been broadened; slavery has been abolished; and the notion of the equal moral and legal worth of every human being has come closer to being a fully accepted political value” (p.68).

This positive assessment leads them to write about legal cases as more or less reflective of some balance between values of constitutionalism and representative democracy. Legal decisions expressing values antithetical to constitutional democracy, like DRED SCOTT v. SANDFORD (1857) and PLESSY v. FERGUSON (1896), are criticized for being “morally callous and politically disastrous” (p.217) and, quoting Harlan’s dissent in PLESSY, as being “pernicious” (p.931). But these cases are presented as fleeting obstacles on the road of progress toward a society that more accurately reflects a blending of constitutionalism and representative democracy, rather than illustrations of what scholars like Rogers Smith (1997) see as a distinct tradition that values neither constitutionalism nor representative democracy. Smith (p.508, n.5) refers to this tradition as “ascriptive Americanism,” a set of values based on the belief that “true Americans are ‘chosen’ by God, history, or nature to possess superior moral and intellectual traits associated with their race, ethnicity, religion, gender, and sexual orientation.” Thus, while this volume reprints a few cases and includes a few others in footnotes that express values running counter to traditions of constitutionalism and representative democracy, it does not present such decisions as reflecting or helping to constitute a distinct tradition, one that is illiberal and undemocratic, but rather as illustrating momentary interpretive problems or mistakes that are overcome in time.

The rich framework developed in this book, however, provides an opportunity to explore connections between constitutions, their interpretation, and cultural traditions opposed to constitutional democracy. It also permits [*693] an assessment of interactions among courts, lawyers, and citizens as varying groups seek to shape and are in turn shaped by constitutional argumentation. In the list of references following each essay included in this volume, the editors cite some of the important works by scholars less sanguine and more critical of the historical development of constitutional democracy in the United States—feminist scholars such as Catherine MacKinnon, Martha Minow, and Robin West, and critical race scholars such as Patricia Williams, Kimberle′ Crenshaw, Mari Matsuda, Charles Lawrence, and Derrick Bell. The works of these scholars and many others raise fundamental questions about the extent to which values of constitutionalism and representative democracy predominate at any historical moment, especially from the perspectives of women and racial and sexual minority groups in the United States.

Such questions might be explored productively through the use of the three central interrogatives employed throughout this book. For example, critical race scholars like Mari Matsuda (1987) might suggest “looking to the bottom” to answer the question of WHO interprets the Constitution. Such inclusion might produce very different answers than those proposed in this book to both the questions of WHAT is the constitution and HOW to interpret it. In a certain sense, scholars like Wayne Moore (1996) and Balkin and Levinson (1998), who read Frederick Douglass’ writings and speeches as constitutional interpretation, call attention to the Constitution’s multiple meanings by “looking to the bottom” as a way of broadly answering the question of WHO interprets official legal documents. Feminist and critical race scholars might look in the same places as the casebook’s editors for answers to the question of WHAT is the Constitution—at the written text, tradition, common usage, and so on. But these scholars would ask other questions about the normative experiences represented in the text, in the tradition, and in common usage and would question whether any of these sources represented them or others who have historically been excluded from participating in writing official texts and developing official traditions and common usages. They would also likely provide new models of HOW to interpret the Constitution, perhaps building on work by scholars like Martha Minow (1990) who suggests that authoritative interpreters acknowledge that their interpretations are shaped by their own backgrounds and life experiences so that their purchase on truth is necessarily partial. To interpret law in ways that are more inclusive of the multiple life experiences and partial truths of diverse peoples, those who interpret law must seek to understand as much as humanly possible the experiences and perspectives of those who are different from them. Katherine Bartlett (1990) refers to this method of interpreting legal meaning as “positionality,” seeking to transcend the norms embedded in law by placing oneself in the position of “others.”

Reading this critical scholarship through the lens provided by the casebook’s framework and interrogatives might well provide new, different, and more complex answers to the question of whether constitutional interpretation merely reflects traditions of constitutional democracy, or whether [*694] some of it, at least, contributes to a counter tradition. As important, consciously “looking to the bottom” to identify WHO may interpret the Constitution may shed light on the ways in which members of historically disadvantaged groups, sometimes in consultation with legal advocates, have engaged in constitutional practices that influenced, at least at some point and to some extent, official elite interpretations and political practices (e.g., Schneider, 1986). Such an approach would not necessarily mean taking the Constitution entirely away from the courts, as some scholars urge (Tushnet, 1999), but rather sharing it with those it helps constitute.

REFERENCES:

Balkin, J.M. and Sanford Levinson. 1998. “The Canons of Constitutional Law.” 111 HARVARD LAW REVIEW 963-1024.

Bartlett, Katherine T. 1990. “Feminist Legal Methods.” 103 HARVARD LAW REVIEW 829-888.

Matsuda, Mari J. 1987. “Looking to the Bottom: Critical Legal Studies and Reparations.” 22 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 323-400.

Minow, Martha. 1990. MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW. Ithaca: Cornell University Press.

Moore, Wayne D. 1996. CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE. Princeton: Princeton University Press.

Schneider, Elizabeth. 1986. “The Dialectic of Rights and Politics: Perspectives from the Women’s Movement.” 61 NEW YORK UNIVERSITY LAW REVIEW 589-652.

Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.

Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.

CASE REFERENCES:

DRED SCOTT v. SANDFORD, 60 US 393 (1857).

PLESSY v. FERGUSON, 163 US 537 (1896).

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