Reviewed by Dennis D. Dorin, Department of Political Science, The University of North Carolina at Charlotte.
 
 
Seidman and Tushnet preface their commentary with two questions: Why is most constitutional argument so weak? And why are we, as a society, "drawn to it" even though we know it is?

They devote a little over twenty pages to an attempt to demonstrate this alleged weakness through critiques of commentaries by editorial writers Nat Hentoff and George Will and law professors Robert Bork, Laurence Tribe, Michael McConnell, David Strauss, Cass Sunstein, and John Hart Ely. In doing so, and for the rest of the book, they excuse themselves from employing the "usual scholarly apparatus in favor of a bibliographical essay identifying, in part, the scholarly and popular discussions that have influenced [them] or that [they] think worth reading as exemplars of the type of analysis [they] criticize." What this means is that they leave themselves free to make numerous controversial assertions unsupported by explicit citations.

Seidman and Tushnet conclude that the selections from the eight analysts they have chosen are painfully indicative of what presently dominates American constitutional commentary. That is, they are simplistic, ideologically biased, tendentious, and so "self-serving, [with their gerrymandering of ideas so] transparent, [that they will not] persuade anyone who needs to be persuaded." Such writers, they contend, present their views as if they are the only ones that could be defended through an open minded and rational reading of the Constitution. Hence, those who reject them are demonized as unprincipled opportunists. Rather than uniting us as a people, then, most modern constitutional argumentation divides us. It places us in the role of preaching to our respective choirs, while obviously manipulating theories of the Constitution to support our political agendas.
 But, according to Seidman and Tushnet, constitutional discourse was not always so destitute. Indeed, the shambles in which we now find our arguments about the Constitution are largely the result of historical and structural forces unleashed several decades ago. In fact, the seeds of our present crisis can be traced, to a large extent, to two specific events, the 1928 Supreme Court case of MILLER V. SCHOENE and the Legal Realists' triumph over the Old Supreme Court's anti-New Deal jurisprudence.

Justice Harlan Fiske Stone's opinion for the Court in MILLER, for example, signaled the demise of the sanctity of private property as a baseline beyond which governmental controls over individual action were forbidden. The State of Virginia had found that cedar trees could develop a disease that, while not fatal to them, could destroy nearby apple orchards. So it passed a law mandating the destruction of all such infested cedars within two miles of apple trees. Under this new regime, the owners of felled cedars would not be reimbursed for their value as lumber or ornamentals.

They therefore sued Virginia, contending that their Fourteenth Amendment right to due process had been violated. Although the cedars were "not as important to Virginia's economy as apple orchards," Seidman and Tushnet tell us, they "were worth something to their owners." So, Miller argued, if Virginia thought its economy were better off with a prosperous apple-growing industry, that was fine. But the Constitution required that the cost of securing it had to be distributed among ALL of Virginia's citizens, even if that meant that tax money would have to be used to compensate those whose cedars were taken.

Justice Stone's response, from Seidman's and Tushnet's perspective, was revolutionary. Had Virginia not taken this action, he noted--had it permitted cedar trees to infect apple ones--that, too, would have been a choice. Either way, from state activity or the lack of it, private property would have suffered destruction. So, the Constitution left the state free to determine WHICH properties would prevail.

For Seidman and Tushnet, MILLER's implications are enormous. Since it saw governmental choice everywhere, it "undermined the conceptual structure that [up to that time,] had made sense of constitutional law." Through it, the Court had now said that law was everywhere. Everything in social life resulted from choices by the government. Lawyers and judges no longer had the possibility of going somewhere outside the political system for their "neutral principles." And without that option, with Stone's having eliminated a sanctuary in a Natural Law of property, constitutional discourse's resources became "dramatically impoverished."

Were this not enough, the Legal Realists' assaults on the Old Court blew away forever its contention that Natural Law provided a realm of constitutionally protected property upon which the New Deal could not intrude. There was no agreement among the American people, the Realists argued, concerning what Natural Law even entailed. And, anyway, decisions in cases did not follow inexorably from transcendent legal principles. The anti-Roosevelt Court was merely using constitutional rhetoric to protect conservative interests.

The legal community's acceptance of this position, according to Seidman and Tushnet, eliminated "any plausible baseline of natural rights against which claims of constitutional entitlement could be measured." Before this monumental New Deal struggle, it had "seemed possible that a shared belief in individualism and freedom could yield determinate outcomes [in constitutional cases] that would command nearly universal assent." But the Legal Realists' victory ended that. In its wake, no theory of fundamental rights could ultimately prove defensible. But to give up in developing and advancing them would be to surrender to nihilism; all law would be nothing but an expression of who was in power. So, the Realists, as well as their descendants within the legal community, found themselves in a desperate struggle to find new ways to posit and defend basic liberties. Their theories, ones of "state action," originalism, the separation of powers, federalism, functionalism--largely holdovers from the pre-New Deal days when they seemed to have a chance to be viable--were now "remnants of belief, too central to our worldview to be abandoned, yet too tattered to serve any real purpose." Without them, any rational system of constitutional law would prove impossible. But, seen in the hard light of Legal Realism, they could be used to defend any interpretation of the Constitution that a clever lawyer found useful.

The ramifications for our current constitutional decision-making relating to such critical concerns as the "state action" doctrine; racial equality; pornography; the financing of political campaigns; capital punishment; the limits of congressional, presidential, and judicial authority; and the powers of the states and Federal Government? Seidman and Tushnet attempt to assess them, concluding that, in all of these areas, the law is in tatters and that it will remain so unless we can somehow finally come to terms, after several decades, with MILLER's and the Legal Realists' legacies.

Until then, we find ourselves in a foreboding situation in which "constitutional argument does not mediate between conflicting world views . . . ." Now bereft of a pre-1937 shared vision for the country, "the best we can hope for is a more or less stable division of the [nation's] booty, supported by an armed truce between sullen factions having nothing in common." For the realization that constitutional rhetoric is a sham "makes it much harder to motivate anyone to take politics seriously, " resulting in "the retreat to private lives and cynical disengagement that is said to mark the 'X Generation,' but runs far deeper through the society."

How do we deal with this? Give up on constitutional argument entirely? That, Seidman and Tushnet argue, would only exacerbate the current destructive tendencies. Instill the storytelling approach to legal study into our judicial policy-making? Among other things, they argue, the system would prove recalcitrant to what they see as such a creative attempt to encourage empathy among political opponents. It would be helpful, Seidman and Tushnet observe, to invite law students, lawyers, and judges to become the "legal statesmen" advocated by Anthony Kronman's LAST LAWYER.

Of course, they contend, "neutral principles" are illusory. But they suggest that we could try, nevertheless, to persuade judges to pursue them. For, in struggling to define and apply them, they might become more sympathetic to their opponents' positions. Then there is the Socratic Method in the law schools. Why not use it to induce students who are pro-choice advocates, for example, to develop arguments supporting the proposition that killing an abortion provider could be justified, under doctrines permitting persons to violate the criminal law to prevent a greater evil? Would not such assignments, they argue, promote the understanding of rivals' points of view not presently fostered by our highly destructive adversarial approaches? We could also redirect our constitutional appeals on major societal questions to those in the middle --a move that might lead us even to confess the weaknesses in our stands, as we develop more moderate arguments.

So, Seidman and Tushnet conclude, properly skeptical, and yet committed, constitutionalists would have to reach out to opponents at the same time they were confronting them. "They would combine anger with empathy, faith with agnosticism, action with reflection." But such a stance would require a level of "maturity, self-knowledge, and tolerance for contradiction that no society in history has been able to muster." Are we achieving it? Seidman's and Tushnet's skeptical commitment leaves them both "doubting--and believing--that it could be so."

REMNANTS OF BELIEF is riddled with problems. Given this review's constraints, however, it can address only a few.

Seidman's and Tushnet's historical analysis, as an initial example, does close to nothing to establish that American society, or even its legal system, actually did enjoy a golden age of constitutional consensus on property, or any other allegedly fundamental, rights, on the eve of MILLER and the Legal Realists. On the contrary, they inadequately treat a history permeated with "fighting faiths" about the Constitution--with their demonizations of opponents--that easily stretched from the Republic's earliest days right through JONES AND LAUGHLIN (1937).

Moreover, and within this context, only through the most contorted of interpretations, could MILLER ever play the role Seidman and Tushnet claim for it. MILLER, in the words of Alpheus T. Mason, was a "minor" piece of Supreme Court adjudication. Stone premised it directly upon MUGLER V. ILLINOIS (1887), a case Seidman and Tushnet never even mention. Mugler had built his brewery and had filled his latest bottles with his beer BEFORE Kansas's prohibition legislation. But, now that the state had become "dry," they were, through no fault of his own, worthless. Was he not entitled, therefore, under the Fourteenth Amendment, to a state reimbursement for them? Burying him in expansive doctrines about how, at times, private property had to yield to the state's police powers, many of them going back to early precedents like the LICENSE CASES (1847), the MUGLER Court had no problem whatsoever telling Mugler that he could not recover.

Nor did Stone with Miller. But MILLER never denied that there was a huge reservoir of property rights protected by the Due Process Clause. What it said, instead, was that Virginia had made an overwhelming case that its apple industry was far more valuable to its people than its cedars. And, in THAT SPECIFIC LIGHT, there was no question that Virginia's destruction of cedar trees, without, as with MUGLER, compensation to each of their owners, was "reasonable."

Seidman's and Tushnet's contention that there was some sort of rigid pre-MILLER and pre-New Deal Maginot Line of property rights "baselines"--one that MILLER and the Legal Realists somehow decimated as the foundation for most of our rights to personal autonomy--is therefore untenable. The MILLER Court, like so many of its predecessors and successors, had recourse to sufficient conflicting--and longstanding-- constitutional principles concerning property to allow it to pick and choose how it would use them in weighing Miller's and Virginia's colliding interests.

Did the New Deal shift the balance far more in favor of governmental control? Of course. Did its Legal Realists dramatize for American society that, in Max Lerner's wonderful phrase, the Court's decisions were not brought by constitutional storks? Indeed. Did both of these phenomena compel the Court to try to explain, in cases like CAROLENE, how "economic" and "personal" rights were different? Obviously. Did they, by destroying any conceivable "baseline" for personal freedoms, usher in a wholly unprecedented era in which almost all of our debates about the Constitution have been invalidated? Not even close! American commentators and courts have always played the games Seidman and Tushnet find so threatening as they have attempte--for better or worse--to reconcile the far-reaching clashes of views and power that have dominated our constitutional policy-making.

Seidman and Tushnet begin REMNANTS OF BELIEF decrying what they see as the reductionism, tendentiousness, demonization of adversaries, self-contradictions, and overall lack of persuasiveness of contemporary arguments about the Constitution. How ironic, then, that this very work lends itself so easily to such characterizations! Were it the best we could do right now, we would, indeed, have cause to despair. My guess, though, one resting upon three decades of university teaching and research, is that if we take any constitutional issue--the right to an abortion or racial discrimination and the death penalty, for example--and peruse ALL of "the leading literature" on it, we will find that our dialogue about it, cumulatively, is of a far higher quality.