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