Massachusetts Law Review

Book Review

Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, by Daniel A. Farber and Suzanna Sherry (The University of Chicago Press, 2002), xi, 208 pages.

In Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, Daniel A. Farber, professor of law and associate dean at the University of Minnesota, and Suzanna Sherry, professor of law at Vanderbilt University, explore the uses of "grand theory" in understanding and interpreting constitutional law. This is their third collaboration, and we are fortunate that it will not be the last.1

Grand theory, or foundationalism, as the authors explain it, is the process of "seeking foundational theories of [constitutional] interpretation to provide simple answers to all constitutional questions and unify all of constitutional doctrine."2 Interpretation by grand theory contrasts with "[p]ragmatist constitutional adjudication [which] is eclectic and uncertain: it takes into account multiple sources, and rarely produces an unequivocal answer."3 The uncertainty borne of pragmatism is anathema to the theorists, the authors suggest, leading them to "fruitlessly seek theories that will eliminate it."4

The vehicle for the authors' exploration is the work of six theorists. Three, Robert Bork, Antonin Scalia and Richard Epstein, are generally thought of as conservatives while the other three, Akhil Amar, Bruce Ackerman and Ronald Dworkin, generally present as liberals. The authors' discussion of all six makes for interesting reading although, as is often the case when scholars have at each others' work, dedication is required to forge through a few sections where nuance grows waist high.

In the end, though, dedication is repaid by an informative and often lively critique of principles at the core of the beliefs the sixth theorists hold. Bork is described as the paradigmatic originalist who "believes that the Constitution should be interpreted to reflect the public intentions of those who drafted and ratified it."5 He, and others, like Boston University's Gary Lawson, "argue[] that to define unconstitutionality as anything other than 'at variance with the Constitution's original public meaning' renders constitutional discourse and adjudication problematic."6 In the authors' view, however, "Bork repeatedly ignores or distorts history to reach his own conclusions,"7 and, in the end, what he and the other originalists propose would "overrule much of the constitutional doctrine developed in the past century."8

For the authors, Richard Epstein is not so much interested in resurrecting the 18th century as he is in arguing "that most government regulations violate the Constitution's Takings Clause and its companion, the Contracts Clause."9 Epstein's theory of takings - described by the authors as "brilliantly designed, but . . . designed for [a] world . . . in which neither we nor the framers have ever lived"10 - would classify as a "taking" "any government action that would be unlawful on the part of an individual."11 So defined, "takings" would include zoning laws, laws dealing with minimum wages and all forms of taxation and would, therefore, produce the need for "just compensation" any time the government acted in one of those areas.12 "Just compensation," in turn, would require the government to give each person from whom it had "taken" something a benefit proportional to what it had taken, a theory that would prohibit, among many other things, a taxation plan designed to provide the poor with benefits greater than those provided the rich.13 Epstein also believes the Supreme Court's expansive view of the Commerce Clause dramatically exceeds the boundaries with which the Constitution constrains it.14 In the end, Epstein's vision, however attractive to its adherents, is well beyond their reach for, as the nation has matured, "[w]e have created institutions that we cannot feasibly undo."15

Akhil Amar pushes theory just as far and just as hard as Epstein, but in a very different direction. The authors characterize Amar as an intratextualist, i.e., one who reads a word or phrase appearing in the Constitution in light of other words or phrases appearing elsewhere in the same document,16 and as one who possesses a deep-seated belief that the Constitution was chiefly devised to create and maintain collective rights.17 Amar's collectivist outlook, the authors tell us, leads him to conclude, more than a little counter-intuitively, "that the Bill of Rights was designed - at least primarily - not to protect individual minority rights against majority tyranny, but to safeguard the majority's rights against legislative unfaithfulness and corruption."18

To Farber and Sherry, Dworkin is among "the most important American legal philosopher[s] of recent times."19 Here, though, they are concerned solely with his views on constitutional law as he expressed them in his 1996 book, Freedom's Law: The Moral Reading of the American Constitution. There, the authors report, "Dworkin provides a penetrating critique of efforts to banish the moral dimension from constitutional law through originalism or populism."20 In the end, the authors reject his approach because they believe that "our legal culture defines constitutional law more narrowly than [he does], so as not to fully encompass the task of defining liberal democracy,"21 and because they do not share his "remarkabl[e] confiden[ce] that difficult moral dilemmas have clear-cut answers."22

Of the six, Scalia, the conservative, and Ackerman, the liberal, are portrayed in the most interesting light. Ackerman believes "that the Constitution contemplates two types of politics: normal or ordinary politics and higher lawmaking or constitutional politics."23 Ordinary politics is the stuff of everyday life in which there is only a loose connection between what the people want and what their political representatives do.24 Constitutional politics, on the other hand, has occurred only three times in our history: during the founding, during Reconstruction and during the New Deal.25 That rare form of politics involves a deeply deliberative process resulting in reflective choices about the direction in which "the People" wish to have the nation move.26 Once constitutional politics has occurred, "the people return to their civic slumber and the nation returns to ordinary politics, but the Supreme Court has a mandate to protect the results of the people's higher lawmaking from future ordinary politicians."27 In other words, constitutional politics is a mechanism for amending the Constitution in addition to the explicit amending provisions contained in Article V.28

The trick, of course, is to find a way to tell when the amending process has occurred. Farber and Sherry describe the five components of Ackerman's framework for doing so and how those components apply to Reconstruction and the New Deal.29 Nevertheless, accepting Ackerman's premise produces numerous questions about whether the Constitution has somehow been amended on other occasions as well. If the New Deal amended the Constitution, they wonder, how can we be so certain that the "Reagan Revolution" did not do so as well?30 Ackerman has an answer,31 but the task of distinguishing between occasions on which the people have produced enduring change through a high moment of constitutional politics and those on which they have simply energized themselves in activities of transient passion is likely to daunt all but the most self-confident observer.

Justice Scalia differs from the others in that he is in a position to do more than simply theorize. To the authors, Scalia appears to be a formalist first and an originalist second.32 His central concern focuses on "minimizing judicial discretion and making the enterprise of judging as value neutral as possible."33 That is not to say that Scalia agrees in principle with much of current constitutional doctrine. On the contrary, the authors state, Scalia finds much of that doctrine erroneous.34 He is just willing to live with it except on those occasions when he can make corrections without unraveling an entire constitutional fabric.35 Describing Scalia's analysis as bold and clear, Farber and Sherry ultimately conclude that "[h]e has made a valiant effort to implement a jurisprudence based solely on text, rules and history. His failure to make such a barebones jurisprudence operational has a simple moral: it cannot be done."36.

All this is fascinating even if sometimes a little overdone. Just as it is difficult to crowd all constitutional interpretation under the umbrella of a single theory, it is hard to take an all-or-nothing approach to criticizing the six theorists. For example, Fourth Amendment First Principles,37 Amar's celebrated proposal for revising current approaches to Fourth Amendment violations, is worth serious consideration even if one does not fully, or even primarily, accept the populist basis for his overall constitutional theory. Ackerman's insights about the paradigm shift that occurred during Reconstruction and the New Deal are thought-provoking examinations of evolving constitutional theory even if one does not accept the notion that those shifts somehow embodied formal constitutional amendments. The views of the other theorists are interesting, as the authors note, because they require the reader to think about the kind of world that might exist if their views prevailed, a reasoning process that "help[s] us see things we might otherwise miss in the complex tapestry of constitutional doctrine and history."38

But the authors' real contribution comes in the final chapter when they respond to the underlying problem with which each of the theorists is, in his own way, seeking to deal, i.e., "a nagging concern about the legitimacy of judicial review - a worry that constitutional law may, as Judge Learned Hand feared, be merely a screen for judicial value judgements."39 That worry manifests itself in the counter-majoritarian dilemma40 thoughtfully discussed at length by Alexander Bickel, who found an answer in judicial self restraint,41 and later by Raoul Berger, an early originalist.42 The authors agree that the counter-majoritarian dilemma is real but think that "scholars seem to turn this genuine difficulty into [a] crisis of legitimacy, as if a good faith but erroneous judicial decision was the equivalent of a coup."43

If scholastic reaction is overblown, the authors' initial response does not give the dilemma due weight. That dilemma has, after all, occupied our collective attention since the Republic began. The problem animated the Court when it decided Marbury v. Madison.44 It animated President Jackson, when after the Court's decision in Worcester v. Georgia,45 he is reputed to have said "John Marshall has made his decision: now let him enforce it!"46 And it animated Lincoln when, in his first inaugural address, he responded to the Dred Scott decision47 by saying:

[T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.48

More recently, it animated the first Chief Justice Wilkins who, in 1958, joined with the chief justices of nine other states to say that

[i]t is strange, indeed, to reflect that under a constitution which provides for a system of checks and balances and of distribution of power between national and state governments one branch of one government - the Supreme Court - should attain the immense, and in many respects, dominant, power which it now wields.49

It is no answer to suggest, as Farber and Sherry initially do, that the dilemma is illusory because the judiciary is only one of the many counter-majoritarian institutions our system contains.50 While they rightly point to the Senate and the Federal Reserve Board as examples of two other such institutions, the decisions of both, like the decisions of every other counter-majoritarian institution save those of the judiciary, are subject to political correction. Their illustrations, therefore, highlight the dilemma; they do not reduce its importance.

Even less helpful is their suggestion that, at least to the extent that lack of political correction is a problem, the solution is appointment of older judges to insure more rapid turnover or politicizing the confirmation process.51 Indeed, the former solution is at war with the latter, at least in a practical sense. And the latter, already in full-bloom, has in the recent past revealed several of its baleful effects.

Gridlock is one of those baleful effects. The Senate's recent difficulty in confirming nominations to the federal courts of appeals has led one observer to state that "[t]he confirmation process for federal judges is in something of a meltdown. Appellate nominations are now provoking a level of partisan warfare that used to be reserved for the Supreme Court."52

Intense partisan conflict is a logical, perhaps inevitable, product of a politicized judiciary, or at least a politicized process for selecting judges, in a nation as closely divided as we are over fundamental cultural issues. When people turn to "the courts for victories over cultural disputes that each side was unable to win in the legislatures,"53 it does not take long for combatants to realize that victory is more certain if decision-makers are cultural allies and, thus, to focus on winning through selection of agreeable judges.54 That realization, no doubt, was the trigger for Justice Scalia's lament in Planned Parenthood v. Casey:55

As long as this Court thought (and the people thought), that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments . . . a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. . . . Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.

The corrosive effect of the partisan struggle is hard to overstate. After all, the very existence of the rule of law depends on one's ability to predict the outcome of civil and criminal disputes by looking at principles of even-handed application, not at the identity of the dispute resolvers.56 But many are coming to view the judge's identity and ideological hard-wiring as more important to the outcome of a given case than the application of settled principle to the discrete set of facts a case presents.57 The greater that view's currency, the more the judicial process morphs into an exercise in power, pure and simple, shedding as it does the moral authority that historically has given the process, if not its life, then at least its character.

Farber and Sherry are on much firmer ground when they suggest, as they ultimately do, that the only real and durable answer to the counter-majoritarian dilemma lies in the appointment of judges who are "open-minded, receptive to opposing views, and capable of balanced judgment . . . [for] it is these traits of character, not adherence to a grand theory, that mark the difference between a principled judge and a willful one."58 High on the authors' list of judicial virtues is "intellectual humility - not in the sense of diffidence but of an open-minded willingness to listen and learn."59 In the end, they suggest, grand theory, no matter how careful and carefully refined, cannot stop "willful judges from pursuing their own preferences. The solution [to the counter-majoritarian dilemma] is not to find some ironclad conceptual constraint but to avoid appointing willful judges."60

There, at bottom, is the truly constraining principle, and the authors have built a powerful case to support it. The principle's implications, of course, are enormously important. Preservation of the rule of law and of the moral authority required for popular acceptance of counter-majoritarian decisions requires substantial self-restraint by appointed judges. In turn, however, preservation of a judiciary willing to exercise that self-restraint requires self-restraint on the part of those invested with the appointing and confirming power. Self-restraint of that type requires appointments of moderation, appointments, that is, of men and women committed to a deliberative process in which all views receive thoughtful consideration before a decision is made. An appointing authority whose commitments lie elsewhere, an authority focused simply on installation of judges likely to serve up decisions confirming preordained ideological and cultural results, risks far more than prolonged and contentious confirmation battles.61 Indeed, efforts to enshrine ideology place at risk the entire legal system that has been carefully, if sometimes fitfully, developed over the last two centuries. The great value of Farber and Sherry's slim volume lies not in its interesting dissection of the work of grand theorists but in its convincing argument that selecting people of moderation for judicial office is the key to preserving the rule of law.

James F. McHugh

End Notes

1. Their prior books are Beyond All Reason: The Radical Assault on Truth in American Law (1997) and A History of the American Constitution (1990). Their next effort "will explore the implications of a pragmatist approach to constitutional adjudication." Daniel A. Farber & Suzanna Sherry , Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations x (2002).[back]

2. Id. at ix.[back]

3. Id. at x.[back]

4. Id.[back]

5. Id. at 10.[back]

6. Id. at 12 (quoting Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 n.1 (1994)).[back]

7. Id. at 17.[back]

8. Id. at 28.[back]

9. Id. at 55.[back]

10. Id. at 65.[back]

11. Id. at 62.[back]

12. Id.[back]

13. Id. at 63.[back]

14. Id. at 69-71.[back]

15. Id. at 73.[back]

16. Id. at 76.[back]

17. Id. at 83.[back]

18. Id.[back]

19. Id. at 122.[back]

20. Id. at 129.[back]

21. Id. at 138.[back]

22. Id. at 139.[back]

23. Id. at 97.[back]

24. Id.[back]

25. Id. at 97-98.[back]

26. Id. at 98.[back]

27. Id. [back]

28. Id. [back]

29. Id. at 105-06.[back]

30. Id. at 111.[back]

31. Id. at 111-12. Like the theory itself, the answer is complicated but ultimately turns on what Ackerman characterizes as Regan's failure "to convince the American people to alter the constitutional course set by the New Deal." Id. at 111. The answer's very nature illustrates the enormous difficulties that would inevitably arise from attempts to use the theory as a basis for deciding specific cases.[back]

32. Id. at 29.[back]

33. Id.[back]

34. Id. at 31.[back]

35. Id. [back]

36. Id. [back]

37. 107 Harv. L. Rev. 757 (1994). [back]

38. Farber & Sherry, supra note 1, at 160.[back]

39. Id. at 140.[back]

40. Id. at 142.[back]

41. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).[back]

42. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977). See generally Jonathan G. O'Neill, Raoul Berger and the Restoration of Originalism, 96 Nw. U. L. Rev. 253 (2001).[back]

43. Farber & Sherry, supra note 1, at 145.[back]

44. 5 U.S. (1 Cranch) 137 (1803). [back]

45. 31 U.S. (6 Pet.) 515 (1832).[back]

46. Robert V. Remini, Andrew Jackson and the Course of American Freedom 1822-1832, 276 (1981) (tracing the statement to Horace Greeley who cited Representative George N. Briggs of Massachusetts for his source). Professor Remini doubts that Jackson ever made the statement but acknowledges that many historians believe it is accurate. Id. at 276-77. [back]

47. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).[back]

48. Abraham Lincoln, First Inaugural Address (March 4, 1861) in The Inaugural Addresses of the Presidents 187, 194 (John Gabriel Hunt, ed., 1997).[back]

49. Conclusions of the Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions, 43 Mass. L.Q., Oct. 1958, at 87.[back]

50. Farber & Sherry, supra note 1, at 147-49.[back]

51. Id. at 148.[back]

52. Jeffrey Rosen, Obstruction of Judges, N.Y. Times, Aug. 11, 2002, ß 6 (Magazine), at 38. [back]

53. Id. See also Michael J. Gerhardt, Judicial Selection as War, 36 U.C. Davis L. Rev. 667 (2003); Editorial, The Real Problem in Making Judges, N.Y. Times, Nov. 1, 2002 at Section A, page 30; E. J. Dionne, Jr., Bush's Judges, Wash. Post, Nov. 1, 2002 at 35.[back]

54. See, e.g., E. Chemerinsky, Ideology and the Selection of Federal Judges, 36 U.C. Davis L. Rev. 619, 626 (2003). [back]

55. 505 U.S. 833, 1000-01 (1992)(Scalia, J., concurring) as quoted in Farber & Sherry, supra note 1, at 35. [back]

56. See Ronald A. Cass, The Rule of Law in America 28 (2001); Report of the Task Force on Federal Judicial Selection of Citizens for Independent Courts, 51 Admin. L. Rev. 1031, 1035 (1999) ("A fixed or rigidly ideological approach to judging contradicts the ideal of the rule of law.").[back]

57. See, e.g., Deborah Sontag, The Power of the Fourth, N.Y. Times, Mar. 9, 2003, ß 6 (Magazine), at 40. [back]

58. Farber & Sherry, supra note 1, at 156.[back]

59. Id. at 161.[back]

60. Id. at 155. Not all agree. See Laurence H. Tribe, Statement to a Subcommittee of the Senate Committee on the Judiciary, 50 Drake L. Rev. 439, 450-51 (2002) (seeming to suggest that the ideal court is one composed of judges who strongly hold the widest possible range of ideological positions). Query whether a court so contrived would likely speak in what Farber and Sherry describe as a "Babel of conflicting tongues." Farber & Sherry, supra note 1, at 159. The answer probably depends on the extent to which members of such a court, notwithstanding their differing ideological views, shared common points of departure for approaching constitutional issues. The six theorists profiled here, for example, have points of departure so very different that serendipity, not principled coalescence of divergent viewpoints, would underlie virtually every majority vote.[back]

61. See Jonathan L. Entin, The Confirmation Process and the Quality of Political Debate, 11 Yale L. & Pol'y Rev. 407, 431-32 (1993).[back]

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