Vol. 4 No. 10 (October, 1994)pp. 146-148
THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? by Michael J.
Perry. New York: Oxford University Press, 1994. 277 pp.
Reviewed by Kevin T. McGuire, Department of Political Science,
University of Minnesota.
Contemporary constitutional debate often pits two competing
schools of thought against one another. The belief that,
independent of practical political consideration, judicial policy
making should flow from constitutional directives, on the one
hand; the belief that, within the context of adjudication, courts
can be sensitive to their role in the political community, on the
other. Enter Michael Perry, who argues that this choice -- the
choice between law and politics -- is a false dichotomy. In his
book, THE CONSTITUTION IN THE COURTS, Professor Perry tries to
disentangle the debate by arguing that judicial and political
philosophy are by no means linked. To that end, he offers a
spirited defense of originalism, and the result is an engaging,
important book.
The engine driving Perry's analysis is the assumption that one
can systematically liberate a particular interpretive mode,
namely, originalism, from political ideology. This is not easily
accomplished, given that the tenor of the debate over originalism
is invariably blended with conservative policy outcomes. The
problem, according to Perry, is that originalism is generally
confused with judicial minimalism, that is, the assumption that
judges must not only resist making decisions based upon their own
policy preferences but must also presume that challenged
legislation, if rational, is constitutional. Proponents of
judicial minimalism, he argues, may in fact be originalists, but
originalism does not presuppose the minimalist conception.
Emblematic of that concern, he consistently holds out the
positions of Robert Bork, as articulated in his book THE TEMPTING
OF AMERICA (1990), as evidence of this general misunderstanding
of the originalist doctrine.
Throughout the first half of the book, Perry largely devotes his
attention to fairly abstract and complex notions of interpretive
method. Of particular importance is his defense of originalism,
which he offers in Chapter 3, asserting that "the Supreme
Court may enforce as constitutional only directives represented
by the text of the Constitution" (p. 31), and that the
Court's obligation is to invalidate those actions that are
inconsistent with those directives. Importantly, "[w]hat is
authoritative, for originalism, is the directive the ratifiers
understood a constitutional provision to communicate, the
directive they meant to issue. That the ratifiers may not have
believed that this or that practice (law, etc.) with which they
were familiar violated a constitutional directive they were
issuing -- even that they believed that the practice did not
violate the directive -- is not determinative" (p. 43).
Thus, the basic thrust of the argument, at least as I understand
it, is that constitutional adjudication, while it must involve
bringing the mandates of the ratifiers to bear, in no way assumes
a modest judicial role in the resolution of such conflicts. This
general proposition and its intricacies are teased out
Page 147 follows:
here, largely divorced from context.
In the second half of the text, however, he invokes doctrine and
applies his analysis to a range of issues, all of which are
tethered to the Fourteenth Amendment. Originalism, it turns out,
permits a fairly extensive reach for the Fourteenth Amendment.
Indeed, in his careful review of the privileges and immunities,
equal protection, and due process clauses, he offers a smart
defense -- again, on originalist grounds -- of affirmative
action, abortion, and prohibiting discrimination based on gender
and sexual orientation. He concludes that "the modern
Court's Fourteenth Amendment work product has been, in the main,
much more originalist than imperialist" (p. 191).
One might argue, though, that the question is not whether these
decisions are consistent with originalism but whether the Court,
in making these decisions, has invoked the kind of rationale that
Perry advocates. That the Court's decisions can be accounted for
as originalist after the fact does not mean that they are
illustrative of such an approach. This point, I would think,
might be particularly crucial to someone like Bork, whose concern
is so often focused on the authority for constitutional decisions
(see, e.g., Bork 1990, 216-217).
To his credit, Perry is appropriately cautious -- in fact, often
overly cautious -- about his assertions throughout the analysis.
Moreover, he seems consistently mindful of the reality that
equally reasonable and faithful disciples of his brand of
originalism may well come to different conclusions. There is, in
his view, substantial leeway in specifying the indeterminacies of
the Constitution.
Having early in the book offered an evaluation of the power of
judicial review, Perry, in his final chapter, proposes some
prescriptive advice on the question of how to better ensure that
the exercise of judicial review is responsive to popular
sovereignty. First, capitalizing on the debate currently swirling
around legislative term limits, he argues that it would be
beneficial to impose similar term limits on the justices of the
Supreme Court. The primary benefit is that it ensures more
constant and contemporaneous political control over the direction
of the Court's policy making. Whatever the theoretical appeal of
eliminating life tenure for members of the Court, from a
practical standpoint, the proposal is probably unnecessary.
However fashionable advocacy for term limits may be, the steady
rate of congressional turnover seriously debilitates the case for
term limits (see, e.g., Hibbing 1991), and this applies with even
greater force to the Court; even with life tenure, the justices
tend not stay on the bench much longer than Perry prescribes
(some ten to twelve years). Historically, the median length of
service for the justices is fifteen years and four months. More
importantly, the same figure for the ten most recently appointed
justices -- excluding, of course, the justices currently on the
Court -- is sixteen years and eleven months (see Epstein et al.
1994, 300-302).
Second, he counsels a more radical change, suggesting that the
United States emulate a version of the Canadian model,
Page 148 follows:
whereby Congress could override the Court on various matters of
constitutional -- not merely statutory -- interpretation. To be
sure, the idea that the Supreme Court might not be the final
arbiter of the Constitution's meaning is foreign to our political
culture. The proposal, he maintains, has the virtue of simply
assuring that, while the Court is an important voice, it is not
the last word on constitutional questions. Why the existing
democratic process of formal constitutional amendment is
insufficient for Perry's needs, however, is not clear. Still,
such a proposal -- leaving aside its predetermined doom -- is a
serious and thoughtful one and thus worth sincere discussion.
Stylistically, the book does, from time to time, leave something
to be desired. Indeed, in some passages Professor Perry presents
his argument in nearly impenetrable prose. At one point in his
discussion of equal protection, for instance, he notes,
"That there is room for reasonable disagreement about the
precise shape or contours of the bases section 1 [of the
Fourteenth Amendment] was meant to prohibit does not mean that it
is plausible to believe that the folks who gave us the Fourteenth
Amendment meant section 1 to forbid the singling out of any group
for worse treatment on certain prohibited bases except for the
singling out of nonwhites or whites for worse treatment, which
was meant to be prohibited whether or not the singling out was on
any prohibited basis" (p. 157). Cryptography, I must
confess, is not among my limited intellectual abilities; nor, I
suspect, is it likely to be found in abundant supply among more
able readers. Quite apart from that, the book also contains an
alarming number of typographical errors, not the least of which
is almost an entire page of footnotes (p. 262) which, so far as I
can tell, reference nothing in the body of the text.
I have no doubt that this book will enjoy a justifiably wide
readership. Whether or not one is persuaded by Perry's analysis,
the argument which the book offers certainly demonstrates the
need for us to reevaluate our thinking about what it means to
bring an original understanding to the Constitution. THE
CONSTITUTION IN THE COURTS is a sober and stimulating invitation
to consider originalism in much broader and more complex terms.
REFERENCES: Robert H. Bork. 1990. THE TEMPTING OF AMERICA: THE
POLITICAL SEDUCTION OF THE LAW. New York: The Free Press.
Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G.
Walker. 1993. THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND
DEVELOPMENTS. Washington: CQ Press.
John R. Hibbing. 1993. "Careerism in Congress: For Better of
for Worse?" In Lawrence C. Dodd and Bruce I. Oppenheimer.
CONGRESS RECONSIDERED. Washington: CQ Press.
Copyright 1994