Vol. 6, No. 3 (March, 1966) pp. 45-47
THE CONSTITUTION AS POLITICAL STRUCTURE by Martin H. Redish. New York: Oxford University Press, 1995, 229 pp.
Reviewed by Lettie McSpadden (Wenner), Department of Political Science, Northern Illinois University
In this concise, closely reasoned, well written book, Professor Redish argues that the Supreme Court misguidedly abandoned its pre-New Deal focus on federalism and separation of powers issues in constitutional law. This became especially evident during the Warren Court years when an overemphasis was given to civil liberties. He argues that the framers intended that the Supreme Court stand as referee between states and central government and between executive and Congress, and that recent courts have illegitimately abandoned this role. In the first chapter, Redish locates his approach somewhere between the strict interpretivists who believe the Constitution can only be construed in light of the experience of the men who wrote it, and the pragmatists who want to see the needs of society influence Constitutional interpretation. Calling himself a pragmatic formalist he calls for greater attention to two major concerns: the relative authority of the central government and state governments, and the relationship between Congress and the executive branch of government.
The second chapter is about federalism and the need for the Supreme Court to define Congressional authority to prevent the central government from regulating purely intrastate commerce on the theory it influences interstate commerce. He applauds Justice O'Connor's opinion in NEW YORK V. UNITED STATES insofar as it "appears to signal the Court's re-entry into the area of constitutional federalism" (p. 23). But he deplores the fact it simply overturned Congress's authority to tell states what legislation they must pass, because in so doing she implied that Congress can still apply federal law to states regardless of topic and can preempt state law. Redish wants the Supreme Court to attribute more power to the states, although he does not tell us what he wants them to do. His reason is the familiar one: that the tenth amendment has been reduced to a truism since the 1930s when the high court stopped restricting Congressional authority over states. He deplores the expansion of the interstate commerce clause, which when combined with John Marshall's necessary and proper clause interpretation, allows the federal government to do anything useful to achieve its legitimate ends. He challenges the arguments of such constitutional scholars as Jesse Choper who advocate a greater role for the federal government. Redish would prefer to replace the rational basis test for federal laws with a more stringent one that would invalidate such laws as the Consumer Credit Protection Act which regulates what he perceives as purely intrastate behavior. Rather than allowing Congress to define its own limits, the Supreme Court should insist that Congress prove to courts that the activities it regulates have interstate impact.
In the third chapter Professor Redish turns from deploring what the federal government can do to regretting what the Supreme Court prevents the states from doing. He attacks the dormant commerce clause interpretation which allows the federal courts
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to overturn state laws not on the grounds that Congress has preempted the states, but on the theory that it might do so, and since it has not, states have to refrain from imposing their own laws. Redish uses the tried and true democratic argument about an unelected federal judiciary having no right to tell states what their elected representatives may not do, based on no explicit constitutional provision. Since the 1930s, he argues, the Supreme Court has not questioned precedents establishing the dormant commerce clause, willy nilly striking down state regulation of such items as non-uniform truck mud flaps and length of trains. The constitution does not give Supreme Court authority to decide what parts of commerce are exclusively the federal government's. Congress is the best judge of what states can and cannot do to regulate commerce, not courts, which have no built in sympathy for states, as Congress has. There are for Redish three categories of state authority: 1) where action by the states is prohibited by the constitution; 2) where state action is authorized by Congress; and 3) where state action is preempted or overridden by Congress.
There is one class of law that might give Professor Redish pause in his plea for all-encompassing state power: laws that discriminate against out-of-staters. The privileges and immunities clause stops states from discriminating against foreigners without need of a dormant commerce clause. The fact that corporations have not been defined as citizens for privileges and immunities purposes gives Redish pause, but he quickly resolves this dilemma by suggesting that since they have been declared "persons" under the 14th amendment, why not make them citizens as well? This solution may answer the unasked question throughout the book: what does the author wish to accomplish by giving states more authority? The author would deny any result oriented goal, but greater freedom for corporations to determine their own destiny through favorable state legislation would appear to be a possible motivation.
Like Locke, Montesquieu, and the framers, Professor Redish, in the fourth chapter, argues that separation of powers is absolutely necessary to prevent tyranny. Pragmatic formalism insists that governing powers must be carefully divided to prevent accretion of power, not just stop its use when one branch of government becomes tyrannical. The author attacks those theorists who argue for the federal government to be able to act quicker and more comprehensively. He labels a parliamentary system with same party controlling both legislature and executive as inoperable in the United States because of our heterogeneous population. Redish cautions liberals that if the President were to become too powerful, it might be a Ronald Reagan. He abhors the concept of "inherent" powers of the Presidency and agrees the Gramm-Rudman Hollings Act was partly unconstitutional because it assigned an executive task to a legislative officer. The Congress's attempt to appoint an independent prosecutor for investigating wrong doing in the executive branch is also unconstitutional because this is an executive function, although this argument is aimed at neither the Watergate nor Whitewater prosecutors.
Chapter five attacks the delegation of powers from Congress to the executive. Pragmatic formalism views both the Court's
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abandonment of the non-delegation doctrine and its refusal to legitimate the legislative veto as actions that have made the United States less democratic. Professor Redish applauds the early pre-1937 court that struck down numerous New Deal laws on the principle of overly broad delegation of legislative power to the executive. Again the author trots out the traditional democratic theory argument against having unelected bureaucrats make policy decisions that only Congressional representatives are constitutionally empowered to make. Redish argues that presidents are not accountable to the public for their officers' decisions because voters do not make their choices based on who is Secretary of the Interior. (However, he does not acknowledge the ousting of such office holders as James Watt, Ann Gorsuch Burford or even Mike Espy because of their notoriety and bad press). Yet the Redish argument for a non-delegatable law is one that fails to give the voter a reason for supporting or voting against a Congressional representative who votes for the law.
The concluding chapter candidly states that a reader might decide that the author of this book "adopts a general approach to constitutional interpretation consistent with the views of scholars of the political right" (p.163). I would certainly agree with that statement. But Professor Redish maintains the usual disclaimer that his only interest in constitutional theory is purely for the sake of interpretational purity and the democratic process, not because he is interested in any particular political outcomes. It is apparent, however, that if his views were adopted, the consequences would be the adoption of many conservative policies.