Revolution by Judiciary: The Structure of American Constitutional Law

Vol. 15 No.9 (September 2005), pp.867-871

REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW, by Jed Rubenfeld. Cambridge: Harvard University Press, 2005. 252pp. Hardcover. $39.95 / £25.95 / €36.90. ISBN: 0-674-01715-3.

Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kreider [at] wilkes.edu

In graduate school, a friend of mine, who happened to be a public opinion specialist, asked what I found so fascinating about studying constitutional law and the Supreme Court. Sensing frustration in his voice, I asked him what about constitutional law and the Court he found so disconcerting. His response was indicative of one of the popular criticisms levied against the Supreme Court – American constitutional case law fluctuates year-to-year, decade-to-decade, because it is all based upon the personal and political predilections of those sitting on the Court. What is “good law” – or constitutional – today, may not be “good law” tomorrow. In essence, my friend’s complaint was that the interpretation and reinterpretation of the U.S. Constitution is not pegged to a standard theory of constitutional interpretation. REVOLUTION BY JUDICIARY is a valuable piece of scholarship on constitutional interpretation that sets out to explain why it is that “American constitutional case law has almost nothing to say about what judges are supposed to be doing when they go about the business of interpreting the Constitution” (p.4). In the end, Jed Rubenfeld presents a compelling and logical explanation of constitutional interpretation and the structure of constitutional law that, I believe, goes a long way in responding to those who share my graduate school friend’s concerns.

Rubenfeld breaks the book into three sections. The first, “The Structure of Constitutional Law,” sets sail on the deep and choppy waters of constitutional interpretation by arguing that “American constitutional law has in fact conformed to a determinate interpretive structure” that, until now, has been “largely or even completely unrecognized” (p.12). While pragmatists, realists, and deconstructivists have given up on a coherent theory of constitutional interpretation, Rubenfeld writes, there is a “framework within which to evaluate episodes of radical reinterpretation,” which “emerges from the deepest democratic commitments of constitutional law” (pp.12-13). In short, in crafting a commitment-based theory of constitutional interpretation, Rubenfeld seeks to rescue the American constitution from both originalism and the “living document” theories.

Rubenfeld sees an important distinction in constitutional law that others up to this point have not recognized. There is both an understanding of what a constitutional right prohibits and what it does not prohibit. He labels the first the ‘Application Understanding’ and the second, the ‘No-Application Understanding.’ The Application Understandings are “its foundational or core applications” (emphasis in original) (p.14). This distinction in constitutional law is important for Rubenfeld because [*868] No-Application Understandings are intentions at best, and not commitments. Further, it is not intentions that should matter to us (and Supreme Court justices) but the commitments of our Constitution’s framers. Rubenfeld remarks that “[t]he point of constitutional law is to hold the nation to its self-given, fundamental commitments over time, and discharging this task requires courts to distinguish, as they have, between commitments and intentions” (p.15). The Application Understandings are important because they serve as the foundation for interpretive, or doctrinal paradigms. Judges acknowledge and apply the core constitutional principles in paradigm cases. Paradigm cases are not built upon No-Application Understandings, leaving justices the power to reject or neglect such understandings.

Those interested in the application of Rubenfeld’s theory of constitutional interpretation to Supreme Court doctrine would find Chapters 2 (rights) and 3 (powers) most helpful. Chapter 2 would help constitutional law professors when faced with the inevitable student question: “How can we square the original intent of the free speech clause – prohibiting seditious libel laws and prior restraint – with the situation we are in now where everything from advertising and falsehoods concerning public persons to pornography and profanity are given some level of First Amendment protection?” This is only a problem, Rubenfeld claims, if we concentrate on original intent rather than the framers’ commitments. Of course, this is a trap many of us fall into. When a No-Application Understanding (what a clause did not prohibit) is violated (for example, nudity moving from unprotected to protected speech), the question is not whether it violates original intent but whether it violates the framers’ commitments. Take the Equal Protection Clause and BROWN v. BOARD OF EDUCATION (1954) as another example. BROWN, no doubt, violated the original intent of the Fourteenth Amendment (it was not intended to apply to segregated public schools). However, as Rubenfeld argues, segregated schools in the mid-1950s can be said to have violated the anti-inferiorization principle developed in the paradigm-case reasoning of STRAUDER v. WEST VIRGINIA (1879), and the anti-caste principle from Justice Harlan’s dissent in PLESSY v. FERGUSON (1896). Judges, in short, “are not bound by [the] original No-Application Understanding” (p.46).

So, how does the Application and No-Application Understandings distinction work in the case of governmental powers? Rubenfeld uses the spending power, the commerce clause, and separation of powers as examples. According to Rubenfeld, the Application Understanding of the spending power, deciphered by examining the common understanding of both Madisonian and Hamiltonian views, reveals that the spending power “enabled Congress to raise and spend revenue to carry out its various enumerated powers, such as establishing post offices, maintaining a navy, or coining money” (p.51). This core Application understanding still holds sway in modern constitutional law, even as the No-Application Understandings (the clause does not apply to domestic improvement appropriations, for example, and it prohibits federal government coercion of state appropriations) are debated and [*869] either accepted and rejected in the courts. The No-Application Understandings change; the core Application understandings do not.

As for the commerce clause, Rubenfeld posits that the core Application Understanding was that Congress could regulate activity that obstructed interstate commerce. Rubenfeld arrives at this conclusion by pointing out that it was universally understood that Congress’ commerce power extended to bridges that might obstruct “navigable water” (p.54). The bridge is within Congress’ power due to its capacity to obstruct interstate commerce. Therefore, in holding that the “commerce clause allowed Congress to regulate activity that, ‘in the aggregate,’ threatened ‘substantial’ harm to interstate commerce, even if the activity was ‘itself local’ and hence not an instance of interstate commerce” (p.54). WICKARD v. FILBURN (1942) is a case example applying the core Application Understanding of the commerce clause. The core Application Understanding and the paradigm case of WICKARD have led the Court to reject the No-Application Understanding that the commerce clause did not allow Congress to regulate the production of goods. Following from the core Application Understanding and the WICKARD Court’s logic, Congress can regulate the production of goods (i.e., labor), if in the aggregate it has a substantial effect on interstate commerce.

Section II, “Commitment, Intention, and Self-Government,” is the theoretical exposition of how commitments are different from intentions and why it matters for constitutional law. The analysis of Court doctrine and jurisprudence has been left behind for philosophy. Though a crucial part of the book, it is not for the faint-hearted, intellectually weak . . . or sleepy. To his credit, Rubenfeld warns the reader of what lies ahead and, with his use of examples from our everyday lives and a charming writing style, creates an easier read. In it, he attempts to answer the question that will be on the mind of every reader at this point: Why is it that justices adhere to the Application Understanding and continue to reject original No-Application Understandings? The answer lies in the difference between commitments and intentions. The short answer is that commitments create obligation; intentions do not. After all, intending to take your kids to the ice cream store is less binding than committing to take your kids to the ice cream store. This matters for constitutional law because written constitutions “are supposed to be obligatory, requiring special justification before contrary action is allowed” (p.77). Even popular will (democracy) should not be able to override the commitments entered into by the framers, who are now dead. Democracy and constitutions conflict.

Rubenfeld’s answer to the “paradox of commitment” lies in the “capacity for self-government” (p.88). Freedom can be living for here and now – the present – but it can also mean over time. Rubenfeld argues “an autonomous self is one that can give itself, and act on, a certain kind of exclusionary reason. Autonomous agents are those able to give themselves, and to act on, reasons of the kind we create when we make a commitment” (p.92). Self-governing is not being “free” each and every time you [*870] make a decision; rather, it is being sufficiently autonomous to make and follow commitments. Rubenfeld gets around the rationality problem (“how can one be ‘free’ if his/her present desires are overridden by commitments?”) by positing that autonomy is an end in itself, something to be valued not because of what it gets you but because it is an end in itself: it gives “our lives shape, meaning, and purpose over time” (p.95). The nexus between commitments and intentions and Application and No-Application Understandings, and the subject of Chapter 5, is that Application Understandings create commitments, while No-Application Understandings do not.

The third section, “Constitutional Law Today,” seeks to explain how the Rehnquist Court interprets the Constitution and to what extent its decisions follow the principles laid out in the book. Just like the Lochner Court had an anti-anti-capitalist agenda, Rubenfeld observes that the Rehnquist Court has an anti-anti-discrimination agenda. For Rubenfeld, the reasoning in UNIVERSITY OF ALABAMA v. GARRETT (2001) (the Eleventh Amendment precludes states from being sued by their own citizens to enforce provisions of the Americans with Disabilities Act) and BOY SCOUTS OF AMERICA v. DALE (2000) (the First Amendment’s freedom of association allows the Boy Scouts of America to discriminate against homosexual Scout leaders by denying them membership) is devoid of any logic, just like LOCHNER v. NEW YORK (1905). The Court’s anti-anti-discrimination principle is also evidenced in its commerce clause (U.S. v. MORRISON), affirmative action (ADARAND CONSTRUCTORS, INC. v. PENA), and religious exemption (EMPLOYMENT DIVISION, OREGON DEPARTMENT OF HUMAN RESOURCES v. SMITH) jurisprudence. Rubenfeld concludes with an analysis of three “transformative decisions” (p.184) – LAWRENCE v. TEXAS (2003), U.S. v. LOPEZ (1995), and GRUTTER v. BOLLINGER (2003) – and asks whether “the Court’s decisions are justifiable according to paradigm-case reasoning” (p.184). He finds GRUTTER to be “well supported by paradigm-case reasoning” (p.196), LAWRENCE not to be (there is an “absence of paradigm-case reasoning” (p.190)), and LOPEZ to be partially supported by paradigm-case reasoning. This last chapter would be of interest to professors of constitutional law or those even mildly concerned with the Court’s privacy, commerce clause, and affirmative action jurisprudence.

While Rubenfeld’s position on the Rehnquist Court and a handful of their decisions makes for a fascinating read, the scholarly contribution of this book is found in his commitment-based theory of constitutional interpretation, the subject of the first two sections. Though I strongly believe Rubenfeld’s book is a must read for every professor of constitutional law, questions certainly linger. For example, scholars, justices, and even founding fathers, have commented that certain principles or values underlie the constitution’s provisions. Is this popular strand of non-interpretivism different in principle from Rubenfeld’s commitment-based theory of constitutional interpretation? To say there are commitments in the Constitution sounds extremely similar to saying the framers had in mind various [*871] principles and values when they crafted the Constitution. It is possible that the difference rests in the fact that previous thinkers have not clearly articulated the philosophical distinction between commitments and intentions and why this is important for constitutional democracy. However, if that is the only difference, Rubenfeld needs to say so explicitly. Aside from these minor points, REVOLUTION BY JUDICIARY has clearly established Rubenfeld as a leading contemporary thinker in constitutional interpretation whose ideas will help shape this field for some time.

CASE REFERENCES:

ADARAND CONSTRUCTORS, INC. v. PENA, 512 US 200 (1995).

BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

EMPLOYMENT DIVISION, OREGON DEPARTMENT OF HUMAN RESOURCES v. SMITH, 484 U.S. 872 (1990).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

STRAUDER v. WEST VIRGINIA, 100 U.S. 303 (1879).

U.S. v. LOPEZ, 514 U.S. 549 (1995).

U.S. v. MORRISON, 529 U.S. 598 (2000).

UNIVERSITY OF ALABAMA v. GARRETT, 531 U.S. 356 (2001).

WICKARD v. FILBURN, 317 U.S. 111 (1942).

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