Vol. 5 No. 8 (August, 1995) pp. 201-202
CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT by
Robert C. Post. Cambridge, MA: Harvard University Press, 1995.
463 pp.
Reviewed by Michael Strine, Department of Political Science,
University of Colorado-Boulder.
"We are all legal realists," yet social theory has made
few inroads in the study of American constitutional law. Robert
Post seeks to move the study of the First Amendment, and
constitutional law generally, beyond a focus on democracy and the
countermajoritarian difficulty to an understanding of law as a
form of social control by integrating literature from sociology,
American studies, political science, philosophy, and law. This
work provides a penetrating and fresh perspective on well-charted
territory, offering potential for a renaissance in the study of
American constitutional law.
Constitutional Domains operates at three levels of analysis: a
study of the First Amendment issues, of constitutional theory,
and of social theory. At each level, he employs philosophic and
doctrinal analysis appropriate to his task. His construction of
intellectual forbearers is fair, critical, but not dismissive.
The most ambitious, and hence titular, aim of the book is to
revive focus on the Constitution as a form of social order in its
more powerful sense. For Post, constitutions embody the demands
of competing forms of the social orders of community, management,
and democracy. The democratic social order creates structures for
self-determination of the people. Though dominant in American
constitutional culture, democracy exists in cooperation and
tension with alternate orders of management, which "arranges
life for the achievement of given objectives" and community,
which articulates and enforces norms that define societal and
individual identity. Each order reflects a normative commitment
to a set of values constructing a social network. This normative
commitment constructs, objectifies, and normalizes individuals
according to these normative value commitments. In the
introduction and one subsequent chapter, Post lays important
groundwork for moving forward the communitarianism-liberalism and
civic republicanism-democracy debate. Each of the present debates
focuses almost exclusively on forms of governance, whether
state-centered or not. The domains of community and management
draw attention to the deeper, implicit social structure in which
governance exists and the demands for management that each
conception of governance faces.
Post draws on the logic of these social orders to articulate a
theory on constitutional adjudication that relies on a
"relational concept of constitutional authority" that
he calls "responsive interpretation." Textualist,
historicist, and organic models of interpretation standing alone
are insufficient guides to judges faced with a different set of
competing demands for constitutional authority in a given case.
Each constitutional question presented to courts concerns a
relationship among an individual, society, and the Constitution.
As such, judges are free (or perhaps bound) to pursue the
alternative modes of interpretation based on "law,"
"consent," or "ethos." Each mode of
interpretation derives authority from values that underlie social
order. In every case, judges must articulate which form of
constitutional order should operate and justify this allocation
in a manner that persuades. Post's provides only a sketch of the
implications or process entailed by this mode of interpretation.
Like others (Lief Carter, Sotirios Barber among them), theories
that rely on a performative, consensual, or persuasive have
troubles providing a vision of
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feedback in the adjudicatory process that ensures the judicial
assessment of the controlling domain of social order resonates
with the relevant publics. Foremost, however, this work
reconceptualizes First Amendment jurisprudence. This task
comprises seven of the nine chapters of the book. Post challenges
the deities on the First Amendment (Kalven, Meiklejohn, Schauer,
MacKinnon, Sunstein, among others). To his credit, Post does not
seek to construct an alternative general theory of the First
Amendment or to justify protection of free speech. Instead, his
analysis reveals the ways existing theory cannot explain
adequately the various forms of social ordering guiding
interpretation of the First Amendment.
Post is at his best in two chapters which effectively use the
comprehensive themes to deconstruct substantive issues involving
free speech. In a penetrating analysis of the common law of the
tort of intrusion, Post demonstrates how the "reasonable
person" standard reinforces norms of civility in a community
by restricting some forms of speech and constructing individuals
acceptable to societies conceptions of decency. In so doing, the
law mediates the uneasy boundaries of society and self by
delimiting reasonable intrusions into privacy. Analyzing the
origins and evolution of the public forum doctrine, Post deftly
illustrates the ways concerns over management dominate over the
traditional explanation of government proprietorship. These two
essays demonstrate the great potential Post displays for linking
insights into social theory to the desire to address specific
concerns about the substance of the law.
Ultimately, however, this work suffers from a deficit
increasingly common in books from the legal academy. Much of the
material presented in this book are articles previously published
in law journals with only slight revisions for inclusion in the
book. While the introduction adequately develops the general
theme of the work, many essays throughout marginalize these
themes in order to maintain the original focus on specific
doctrinal problems. Refreshingly, Post admits this emphasis:
"With the possible exception of Chapter 5, the essays that
follow were written to respond to particular exigent problems of
constitutional or common law. The intellectual program I have
summarized in this introduction emerged only as it was necessary
or useful in illuminating these specific problems." The lack
of a conclusion heightens the sense of the work as a series of
separate projects.
The result, however, is a work that falls short in providing a
coherent theory of the interplay of community, democracy, and
management as forms of social order underlying constitutional
law, but succeeds at effectively deconstructing the theory and
practice of First Amendment scholarship and jurisprudence and
laying the foundation for a deeper reconstruction of the
understanding of constitutional law generally. Even so, the
profound promise of the book's premise and penetrating insight
leave the reader wishing for a more coherent development of the
themes of management, community, and democracy. Perhaps this book
will inspire doctrinal and empirical inquiry along these lines.
Copyright 1995