Vol. 10 No. 8 (August 2000) pp. 476-479.

POLITICS AND CONSTITUTIONALISM: THE LOUIS FISHER CONNECTION by Robert J. Spitzer (Editor). Albany, NY: The State University of New York Press, 2000. 285 pp. Cloth $57.50. Paper $18.95.

Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University.

The relationship between law and politics is ambiguous and contestable. In constitutional democracies, politics is supposedly subsumed under rule of law, delegating policy matters to be resolved by electorally accountable majoritarian institutions and the adjudication of rights to the judiciary. Yet, the reality of American constitutional politics has altered this relationship. Often to the consternation of some and delight of others, it has produced a government where elected officials often defer to a judiciary to render decisions resolving important issues of the day including abortion, executive privilege, and the status of African-Americans as citizens. Challenging this constitutional paradigm has been the hallmark of much of Louis Fisher's career. The authors in this edited volume review his career
and contributions as well as offer their own slant on this issue.

There are really two books in POLITICS AND CONSTITUTIONALISM and both grow out of a 1997 American Political Science Association conference panel. One book serves as a cross between a premature Festschrift and review of Fisher's oeuvre while attempting to answer the question "Who is Louis Fisher
and what is he saying about the relationship between politics and law? The second book aims to provide a broader perspective on law and politics. Connecting the two is a focus on separation of powers issues among Congress, the president, and the Supreme Court.

Robert Spitzer's introduction describes Louis Fisher's contributions as twofold. First, his pioneering emphasis on the importance of political institutions to the law, which he developed back in the early 1970s, makes him a forerunner of the new institutionalism movement. Second, his blending of a career in active government service along with substantial scholarship challenges the notion that only academics can generate intellectually creative ideas. Similarly, drawing upon Fisher, Spitzer also describes the essays in the book as rooted in the belief that constitutionalism informs politics and that the judiciary does or should not have a monopoly over the evolution, interpretation, and the meaning of the Constitution. Congress and the President share as equal partners in this interpretive enterprise.

Neal Devins draws upon recent Supreme Court decisions such as ROE v. WADE (1973) and CITY OF BOERNE v. FLORES (1997) to elucidate Fisher's claim that contrary to COOPER v. AARON (1958), the courts hardly ever have the last say in major constitutional or political disputes, less they face reprisal.
From MARBURY v. MADISON (1803) to the present, Devins describes how frequent challenges to the Court's supremacy by

Page 477 begins here

other political institutions have generally kept the latter in check.

Michael Glennon's essay looks to foreign affairs and Fisher's views in examining the law of diplomacy. Specifically, he raises an absolutely fascinating question: If the courts are silent on an issue, do Congress or the president come under any constitutional obligations? Contrary to Fisher's assertion, Glennon replies in the affirmative, describing three sources of obligation that have limited political discretion: (1) the Constitution and case law, (2) constitutional custom, and (3) in the intent
of the framers and functional considerations. These three sources are what the courts draw upon when rendering decisions, especially in foreign affairs issues, and they are binding upon the president and Congress even if the courts have not acted. This assertion leads to interesting scenarios. For example, may presidents refuse to enforce laws they think are unconstitutional or must they enforce a law at least once and then challenge it in court? Depending on how one answers, Andrew Johnson's refusal to obey the Office of Tenure Act and his subsequent impeachment need to be reconsidered.

Nancy Kassop draws upon Fisher's views to assert that the constitutional dynamic among the three branches is fluid. Over time, the role of the courts as primary defenders of individual rights and the choice of which rights they protect has ebbed and flowed. Alternatively it has produced judicial exclusivity and coordinate constitutional construction. With that, Kassop does a nice job demonstrating how at times the Court has claimed for itself exclusivity while at others beseeched Congress to act. For example, in EMPLOYMENT DIVISION v. SMITH (1990) the Court encouraged Congress to find new ways to protect religious freedom, the latter responded. Yet, the Court rejected that effort in CITY OF BOERNE v. FLORES (1997). Similarly, Kassop reminds judicial scholars that the Court often gets it wrong when it comes to individual rights and that for Fisher, other branches and even the states have a role to play in constitutional adjudication. This suggests that John Calhoun may not have been wrong after all.

David Adler reviews Fisher's views on war power. According to Fisher, the president has usurped the constitutional framers' intent to make Congress the dominant branch in this area. This essay does a solid job recounting the evolution of this usurpation and how Fisher has responded to critics who see the necessity of a strong president in the field of war making authority.

Dean Alfange's exegesis on the Supreme Court and federalism is prescient, especially in light of the Court's decisions on this subject in the 1999 term. Alfange attributes to Fisher the position that Congress and not the judiciary should be the final arbiter of federalism matters, yet as this chapter describes, the Court has often and repeatedly disagreed. Scholars interested in a concise and cogent review of federalism jurisprudence up to the early 1990s will find this chapter of interest,
including comments on early signs that the Rehnquist Court was prepared to effect a constitutional revolution in state rights and national power.

Loch Johnson's contribution explores government secrecy and discusses Fisher's research on it dating back to the 1970s. Although Fisher and Johnson conclude that yes, some discretion may be needed when presidents act, secret treaties, negotiations, and covert activities are

Page 478 begins here

incompatible with a constitutional government. Also, they seem to agree that impeachment is an important remedy to address excesses such as Iran-Contra.

Spitzer's second chapter uses the Second Amendment and the case of the line item veto underscore Fisher's view that it is a folly to leave the Constitution to lawyers. The purpose here is to show that legal analytics, as demonstrated by law review scholarship, wrongly twists political issues into legal games. For example, this produces claims that, because the framers did not know of the free rider issue, a line item veto is constitutional or that because of the needs of individual self-defense the Second Amendment protects the right to possess firearms. Spitzer's historical analysis here provides a good rejoinder to law office history.

Finally, Fisher provides what appears to be almost a perfunctory conclusion, quickly reviewing the claims made by others about him in this volume. Essentially he concurs in their assessment of his views, and he concedes that perhaps describing his career as a sustained discussion of separation of powers issues is an apt label.

What can we conclude about the contribution of Louis Fisher based upon essays in this volume? His emphasis upon coordinate construction as opposed
to judicial supremacy leads him to challenge Tocqueville's dictum that sooner or later all political questions in the United States are turned into legal ones for the courts. Although constitutional democracies need to respect rule of law, ultimately there may be zones that demarcate political from legal questions, rendering the relationship between law and politics less of a hierarchy and more of separate but equal terrains. Finally, the institutional role of the courts in society is dynamic, changing over time in relationship to roles asserted by Congress and the president. Yet, over time the Court and the presidency have come to assume powers they were not meant to have, thereby crossing lines of authority they should not.

The contribution of POLITICS AND CONSTITUTIONALISM to a better understanding of how law and politics are connected is mixed. Many of the
essays are merely descriptive highlights of Fisher's views while others, like Glennon's and Alfange's, raise good questions regarding institutional authority and the Constitution. More perplexing, though, are two unstated assumptions that seem to run through this book and which appear to make Fisher novel. First is the assumption that constitutional interpretation needs to be viewed as a coordinate process and, second, that constitutional authority must be viewed from a historical, dynamic, and institutional perspective. Both of these assumptions say something about either recent legal or political science scholarship that has focused singularly upon the courts and the model they assumed in the post-New Deal era. Twenty-seven constitutional amendments and hundreds of other failed efforts along with
untold number of Acts of Congress overturning Court decisions or creating rights should be enough to prove that the judiciary is not the only player in the legal or rights game. Yet, preoccupation with studying the judiciary in isolation has often lead to misguided scholarship seeking to understanding the certiorari selection process, whether the attitudinal or legal model more correctly predicts opinions, or proof that the Court alone cannot effect social change. According to the contributors in this volume, had Fisher's views been taken more seriously, such questions would

Page 479 begins here

have been posed and answered very differently.

REFERENCES:

CITY OF BOERNE v. FLORES, 117 S.Ct. 2157 (1997).

COOPER v. AARON, 358 U.S. 1 (1958).

EMPLOYMENT DIVISION v. SMITH, 494 US 872 (1990).

MARBURY v. MADISON, 1 Cranch 137 (1803).

ROE v. WADE, 410 U.S. 113 (1973).