Vol. 5 No. 4 (April, 1995) pp. 130-132
PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH
AMENDMENT by Robin West. Durham, N.C.: Duke University Press,
1994. 359pp.
Reviewed by Judith A. Baer, Department of Political Science,
Texas A&M University
PROGRESSIVE CONSTITUTIONALISM is not a book. This statement is
not a criticism, because Robin West acknowledges that what she
has is not a linear, logically developed thesis but a collection
of essays revolving around and emanating from a theme. Each of
the book's ten chapters previously appeared in a law journal and
is published here without revision. This book's value lies in its
making Robin West's work in constitutional theory easily
available to the interdisciplinary audience which is familiar
with her provocative and original contributions to feminist
jurisprudence. The book's failures arise from West's apparent
ignorance of the differences between the respective ground rules
of constitutional theory and feminist theory. Provocative, her
constitutional theory is; original, it is not.
West sets herself three tasks: to present a
"progressive" interpretation of the Fourteenth
Amendment in opposition to the now dominant
"conservative" interpretation (p. 1), to demonstrate
that this progressive interpretation is truer "to the
history of the amendment" and "to its language, logic,
and spirit" (p. 3) than is either the conservative
interpretation or the "liberal legalism" which this
conservatism replaced (pp. 211-12); and to argue that "a
progressive understanding of the Fourteenth Amendment is far more
likely to be realized through legislative action than through
judicial intervention" (p. 6.) By "progressive
constitutionalism," she means a constitutional paradigm
which "view[s] the power and normative authority of some
social groups over others as the fruits of illegitimate private
hierarchy and regard the Constitution as one important mechanism
for challenging those entrenched private orders" (pp.
212-13). Unlike conservative constitutionalists, who tend
"to see in a particular social and private institution a
source of communitarian wisdom and legitimate normative
authority," progressive constitutionalists tend "to see
the product of social private hierarchy, and the patterns of
domination, subordination, and oppression that inevitably attend
such inequalities of power" (p. 213).
Readers familiar with West's feminist scholarship will have no
difficulty recognizing PROGRESSIVE CONSTITUTIONALISM as the work
of the same author. While only Chapter 2, "Equality Theory,
Marital Rape, and the Promise of the Fourteenth Amendment,"
has an explicitly feminist topic, the entire book evinces a
feminist perspective. West's analysis of the oppressive function
of hierarchical institutions emphasizes marital asymmetry,
women's double responsibilities for work and family life, and the
other institutions and customs that make women's lives
particularly dangerous and burdensome. In fact, she can be
faulted for stressing intimate institutions to the neglect of
corporate ones. Her commitment to a constitutional paradigm which
recognizes the powers of
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extragovernmental institutions follows logically from the
perspective of those who are most oppressed by these
institutions, and whose voices have been excluded from
constitutional interpretation. Her insistence on bringing these
voices in, and her boldness in challenging the received
interpretation(s), are welcome. Thus, she accomplishes her first
task. It is on the second and third that she falls short.
I take these two arguments in reverse order because West's
defense of legislative supremacy can be dealt with more briefly.
She insists that judicial interpretation, even the
"liberal" variety, is inherently conservative. She
examines the usually contrasted approaches of Antonin Scalia and
William Brennan to show that each inevitably depends on past
authority (Chapter 5.) It is hard to dispute her conclusion,
particularly for those of us who were drawn to public law in our
youth by our enthusiasm for the Warren Court and painfully
discovered its historical atypicality. But West's view of the
legislative branch makes me suspect that she has similarly
mistaken the temporary for the permanent. Her plea to
"assume a virtuous rather than a mean-spirited
Congress" (p. 298) was presumably written before the 1994
elections; it has as hollow a ring now as does Hugo Black's view
of the judicial branch as a haven of refuge for the powerless.
The importance West attaches to the female and minority presence
in Congress ignores the historically documented ability of elites
to get people to act like them who do not look like them. A
successful progressive constitutionalism must ask why the
conservatives become powerful while the progressives remain
ineffectual. West's assertion that her progressive interpretation
is superior to other readings of the Fourteenth Amendment sent me
to the book's citations -- not only because this is part of a
reviewer's job, but also because I wrote a book with
"Fourteenth Amendment" in the subtitle and
"Equality before the law -- United States" as a Library
of Congress subject heading. My own name, therefore, was among
those I expected to find. (Like Abou ben Adhem's, and for the
same reason, it usually leads all the rest.) Not only did I
publish through a university press whose reputation is comparable
to Duke's, but the subject of West's first chapter -- "an
abolitionist interpretation of the Fourteenth Amendment" --
is a subject to which I devoted considerable attention. Any
halfway competent bibliographic search should have turned up my
book. Its omission, therefore, disconcerted me.
Further recourse to the references reassured me that I should not
take this omission personally. Michael Curtis's book, published
by Duke, is similarly ignored. So are books by Earl Maltz,
William Nelson, and Raoul Berger, all law professors (as Curtis
and I are not), and the last two published by Harvard, perhaps
the least neglectable of American university presses. All five
books examined the history and text of the Fourteenth Amendment
in books published in the last twenty years; the last three
implicitly or explicitly contradict West's categorical assertion
that "the uncontested meaning" of the amendment was
"to abolish not only slavery per se, but the dual
sovereignty that facilitates it" (p. 25.) West's neglect of
the scholarly literature on the amendment is
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accompanied by an even more serious neglect: an absence of
references to the primary sources, even the debates in the
Thirty-ninth Congress. Her theory literally does not know what it
is talking about.
The omissions do not stop here. West's analogy between family
oppression and slavery ignores Andrew Koppelman's similar
argument with respect to abortion rights. West's last chapter
promises an "aspirational constitution" without
mentioning Sotirios Barber's work. It is, of course, gratifying
to find evidence that another scholar has independently arrived
at interpretations similar to one's own. But the fact that
Koppelman, Barber, and I got there first means that West's ideas,
however incisive and intriguing, are not original. Her work in
constitutional law is not sufficiently grounded to qualify as
anything other than guess.
Herein lies the crucial difference between constitutional law and
feminist jurisprudence. The latter boldly goes where no one has
gone before; its organizing premise is that an important
perspective is missing from conventional scholarship. But the
Constitution in general, and the Fourteenth Amendment in
particular, have commanded scholarly attention for a long time.
No scholar who has a theory of constitutional history, meaning,
logic, and spirit is free to ignore the work of others. These
others include political scientists, who build on and acknowledge
the work done in the law schools and in other disciplines. We do
this not only because collegiality demands it, but also because
the search for truth depends on it. Political scientists must
serve notice on the law professors that they are no longer free
to ignore our contributions to the study of public law.
REFERENCES
Baer, Judith A. EQUALITY UNDER THE CONSTITUTION: RECLAIMING THE
FOURTEENTH AMENDMENT. Ithaca, N.Y.: Cornell University Press,
1983.
Barber, Sotirios. ON WHAT THE CONSTITUTION MEANS. Baltimore:
Johns Hopkins University Press, 1984.
Berger, Raoul. GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE
FOURTEENTH AMENDMENT. Cambridge, Mass.: Harvard University Press,
1977.
Curtis, Michael Kent. NO STATE SHALL ABRIDGE: THE FOURTEENTH
AMENDMENT AND THE BILL OF RIGHTS. Durham, N.C.: Duke University
Press, 1986.
Koppelman, Andrew. "Forced Labor: A Thirteenth Amendment
Defense of Abortion," NORTHWESTERN UNIVERSITY LAW REVIEW, 84
(Winter 1990): 480-535.
Maltz, Earl M. CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS,
1863-1869. Lawrence, Kans.: University Press of Kansas, 1990.
Nelson, William E. THE FOURTEENTH AMENDMENT: FROM POLITICAL
PRINCIPLE TO JUDICIAL DOCTRINE. Cambridge, Mass.: Harvard
University Press, 1988.
Copyright 1995