Gerald Russello

Gerald J. Russello is author of The Postmodern Imagination of Russell Kirk (University of Missouri Press.)

The Conservative Mind at 60: Russell Kirk’s Unwritten Constitutionalism

Kirk 3

In his great work, The American Republic, written in 1866, the American Catholic political writer Orestes Brownson – who ranks with Calhoun and John Adams as among the finest political minds America has produced, and who still remains somewhat neglected – wrote this about the nation’s political order.

The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.

The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is Providential, not made by the nation, but born with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted.

This dual structure also informs the work of Brownson’s greatest intellectual descendant, the conservative writer Russell Kirk (1918-1994), whose major book The Conservative Mind celebrates its 60th anniversary this year.  Kirk drew explicitly upon Brownson in that book, arguing that constitutions must first be drawn from historical experience, and are the product of slow growth.  Indeed, Kirk says that whatever the form of government that has grown up in a nation, that “must” therefore be the best form of government for that nation.  For constitutional government, the same rule holds, Kirk writing that “no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention , affirms an enduring moral order of obligation and personal responsibility.”  In the subsequent forty years of writing, until his death in 1994, Kirk rarely strayed from that conviction, but he did explain in further detail what his early work set out only in outline.

Although Kirk is not primarily known as a legal thinker, over the course of his career, and especially in the last fifteen years of his life, Kirk devoted several important essays and articles to legal themes.  A collection of his writings on the law are found in a posthumous work, Rights and Duties, which combines previously unpublished pieces with an earlier book-length work, The Conservative Constitution.  His writings on the law, justice, and the Constitution present a conservative perspective that is opposed not only to a liberal theory based on abstract rights but also to what are considered more classically conservative approaches.  Kirk may be classed among the originalists, in that he believes the Constitution does reflect a consistent meaning that relates back to the meaning it had during the founding period, and that judges should exercise restraint in interpreting the Constitution.  However, his concern is really with the cultural underpinnings that make a written constitution workable in the first place.  Paraphrasing the Harvard critic Irving Babbitt, Kirk believed legal and political problems were at first philosophical, then theological problems.  A community that was confused about its founding principles would be confused as to its laws.  Understanding the customs and traditions of a nation must inform our understanding of the written Constitution.

In his works, which primarily concern intellectual history and biography, Kirk delineated a comprehensive critique of liberalism.  He focused on finding (some would say creating) a tradition of conservative thought, descended from the Whig statesman Edmund Burke, to counter what he saw as the desiccated rationality of the Enlightenment and the coming post-liberal age that Kirk termed the Age of Sentiment.   His individual studies of writers such as Burke and T.S. Eliot, and his more thematic works such as The Conservative Mind or America’s British Culture, were intended to identify enduring cultural norms upon which, Kirk believed, civilizations must rely.  His writing was for this reason narrative and evocative rather than purely analytical, deliberately creating a conservative style of thought that was – rhetorically and substantively – a counterpoint to what he saw as liberalism’s excessive devotion to scientism and abstract rationalism.

His mode of writing about the law is in this vein.  Kirk is not interested, really, in professional arcana like statutory interpretation or parsing precedent.  In constitutional law, as in other areas, Kirk displays his central themes:  a suspicion of centralized power and rule by “experts,” a devotion to tradition, and a commitment to the nation’s federal structure.  He repeatedly states that the purpose of the law is a simple one – it is to keep the peace.   Because it is intended to keep the peace, the law must evolve gradually out of actual disputes and compromises of a living community.  The law must not be imposed top-down, as such an enforced peace is not peace at all.   Moreover, such a legal system reduces certainty and fairness, and turns the legal system into a struggle for power.

But at the same time, Kirk believes in an overarching moral order that also – as much as local custom or convention – informs both the law and the Constitution.  However, Kirk developed his own perspective on whether, and to what extent, that law has to do with positive law.  He emphatically rejected a view that the Constitution required “substituting [the] personal and shifting value judgments of nine judges – who can form no consensus among themselves – for enduring moral standards derived from religion, philosophy, and a people’s custom and convention.”  That perspective, unfortunately for those seeking a Kirkian “system,” does not reduce itself to a series of propositions or statements of “right” answers.  Rather, Kirk was a forceful voice for multiplicity and diversity in constitutional arrangements, but those arrangements must be adjusted and modified at local levels and across a myriad of courtrooms and other fora.  The conservative obsession, at least since the 1980s, with fixing the “original meaning” of the Constitution had little resonance for him given his larger cultural concerns.

The historian Clinton Rossiter once quipped that Kirk was born in the wrong country a hundred and fifty years too late, and Kirk was criticized by fellow conservatives (such as the libertarian Frank Meyer) for promoting a static social order of squire and servant rather than a free republic.  But amidst the sweeping history of The Conservative Mind is a chapter titled, “Legal and Historical Conservatism:  A Time of Foreboding,” which treats the work of Henry Sumner Maine,  Leslie Stephen, and W.E.L. Lecky.  This chapter has not received significant attention, but in it Kirk undercuts the vision of him as a faux-aristocrat.   First, he approves Maine’s assessment that the transition to the modern world is from status to contract.  Contract accords each of us the right of freely entering into agreements.  In his discussion of Maine, Kirk notes that “the source of social wisdom is the knowledge of past ages, but that dreary imitation of what once lived will stifle the most gifted peoples.”  Kirk was no reactionary.

Kirk is often challenged for his statement in The Conservative Mind that civilized society “requires orders and classes, as against the notion of a ‘classless society’,” and that some such hierarchy was necessary for a stable social order. Kirk’s argument is typically misunderstood as an approval of a particular social order, specifically that of late eighteenth-century Britain, and that such a social order must mean people stay in place.  Neither of these mischaracterizations are true.  Kirk in fact had no patience for the eighteenth century, which he called “an age of gilded selfishness and frivolous intellectuality— an age almost without a heart.”  His preference for Burke over other thinkers of the same era, for example, Bolingbroke was because, for Kirk, Burke was “essentially a modern man, and his concern was with our modern complexities.”  Rather his point is that every society has such hierarchies and orders, and to pretend otherwise – either by inventing a Marxist “classless society” or an equally imaginative egalitarian utopia, actually undermined both order and liberty.

The “science of jurisprudence” likewise cannot be weighed down by the dead hand of the past but must change with “the passage of the generations.”  The law is not, Kirk says, “immutable.”   But the fact that the law changes was less important to Kirk than how it changes.  In the Anglo-American tradition, Kirk identified several prerequisites, foundational principles upon which the rule of law rested.  The most important of these are first, that the law is not an arbitrary system to be used by those in power against those who are not; second, the notion that no one is “above” the law; and third, that the sources of law are custom, tradition, and precedent.  These features, for Kirk, it must be stressed, not themselves part of the rule of law or the formal “legal system,” but rather arise from the historical experience of the West.  Taken together, they represent a strong preference for gradual, piecemeal development of the law, with few if any abstract, universal principles imposed from outside.

This approach can be frustrating, and Kirk – in part because he came to legal discussions rather late in his life – never fully developed, for example, how he would reconcile both his belief in an enduring moral order with his approach to specific legal questions.  Some essays, however, give an example.  In 1986, he wrote a long essay on the Supreme Court’s pornography jurisprudence.   Kirk’s thesis was simply that local communities needed to decide how to treat such materials, or even to permit them at all.  The moral absolute of free speech – if such there was – applied only to political speech.  To find otherwise, and to let judges, especially the Supreme Court, apply their own pet theories as to whether something was obscene, was a recipe for social disaster.  One thing the precedent demonstrates was the “imprudence of transferring to an arbitrary central authority decisions that have traditionally been made by local communities or state legislatures.”  In short, such arrangements might differ across the country.  It is liberalism, not conservatism, that was imposing a moral straitjacket on the country.  In this he sounds something like Willmoore Kendall, in his 1964 article on the school prayer cases, who made the same point.  “We the people” must live together in our various communities, and the law should reflect our considered sense of justice.

Kirk wrote several important essays on the “natural law,” which he sharply distinguished from the doctrine of “natural right,” an ideology he traced to the French revolution.  Some have criticized Kirk’s reliance on the natural law, which they say was both too commanding and yet too vague to be of real use.  Drew Maciag, for example, in his recent book on Edmund Burke and his reception in America, finds Kirk’s invocation of the natural law underwhelming and indeed “slippery.”  For Maciag, Kirk’s proposition “that humans could not determine where natural law began or ended, and should neither define it too precisely or too vaguely, but should be guided by it” made little sense, and was more a romantic, antirational invocation of romantic sensibility than a persuasive account of the natural law, much less the details of its operation.

But this overstates Kirk’s use of the natural law.  First, in the everyday world of disputes, the natural law will be little invoked.  Indeed, he wrote that the “Christian doctrine of natural law cannot be made to do duty for ‘the law of the land’; were this tried, positive justice would be delayed to the end of time.  Nevertheless, if the Christian doctrine of natural law is cast aside utterly by magistrates, flouted and mocked, then positive law becomes patternless and arbitrary.”  Natural law is “more than a guide for statesmen and jurists. It is meant primarily for the governance of persons — for you and me, that we may restrain will and appetite in our ordinary walks of life.”  Careful attention to historical development and actual community norms would be a better guide to the natural law than philosophic theorizing, to which judges are unsuited.

Kirk himself warned against this use of natural law as trump in his recounting of the controversy between Senator William Seward and Orestes Brownson.  In a speech on the Senate floor in 1850, Seward stated there was a “higher law than the Constitution” regarding laws about slavery.  This speech caused Brownson to write in reply one of his more famous essays, the 1851 “The Higher Law,” which argued that while the law of God may indeed be above that of the Constitution, the Constitution is not intended to channel private judgment about what that law is.

Nevertheless, both progressives and conservatives have called upon the natural law to serve their purposes, often deriving various principles out of elaborate theories.  Yet for Kirk the natural law had a public purpose only in the most narrow of circumstances – tyrannicide is the only clear historical example Kirk uses, when arguing that those conspiring to kill Hitler were justified in doing so.  Kirk sees the natural law as a bulwark against a conception of law that does not acknowledge any boundary to the lawgiver’s power.  Kirk termed this as positivist law, which rests all authority only in the state.

This brings us now to the Constitution.  Kirk objected strongly to the view that the Constitution reflected a Lockean state of nature.  Indeed, he wrote a famous essay titled “The Constitution Was not Written by John Locke.”  The “social contract” was a dangerous fiction, and if there were any such agreement it was one between generations and bound by sentiments such as love of neighbor and a sense of duty.  The Founders were not Lockeans, and the majority of Americans at the time, the ones who actually ratified the Constitution, were small-town communalist protestants more influenced by moralist Thomas Browne (and Burke) than Locke.

Instead, the Constitution was the final flower of the “great tree” of Anglo-American jurisprudence, and not something born simply of the minds of the fifty-five men gathered in Philadelphia.  He did acknowledge the novelty in some respects of the American governmental system, as defended for example in the federalist.  Kirk saw that the tripartite federal system, with its division of powers, extended over such a large republic, was new in political science, and was without clear British or classical models.  Nevertheless, at the state and local levels, much remained of British practice, not least the strong tradition of common law and the use of British precedent and legal treatises.  Kirk saw political parties, the presidential cabinet, and the primary system as important supports for our written constitutional orders.

That system rests in turn on the “postulates” of Christianity.  In an important 1983 lecture, Kirk draws on Maine, again, and more recent legal writers such as Roscoe Pound to claim that the particular forms of Anglo-American law reflect, even if opaquely, certain Christian assumptions.  Without those assumptions, the legal system will collapse, and be used merely as a tool for social engineering and “judicial metaphysics.”

The law that judges mete out is the product of statute, custom, convention, precedent  yet back of statute, custom, convention, and precedent ay be discerned, if mistily, the forms of Christian doctrines, by which statute and custom and convention and precedent have been much influenced in the past.  And the more that judges ignore Christian assumptions about human nature and justice, the more are they thrown back upon their private resources as abstract metaphysicians – and the more the laws of the land fall into confusion and inconsistency.

It should not be necessary to state what Kirk is not saying.  He is not saying the United States is a “Christian commonwealth,” or one whose legal code need match the Christian moral code (indeed, he stated in a lecture given at the Heritage Foundation that the ‘state is unconcerned with sins unless they lead to breaches of the peace, or menace the social order.”)  And certainly much of the practice of the modern administrative state is quite removed indeed from the postulates of human nature Kirk refers to here; rather Kirk is making an historical point that our legal system comes from a very specific, concrete, and long tradition that should not be ignored.

Kirk presents a challenging historical and legal vision of the Constitution for conservatives, accustomed now for almost three decades to fight over the legitimacy of the Supreme Court and the true meaning of the Constitution.  Important as the battles over constitutional meaning are, the stability of the constitutional structure lay elsewhere.

Responses

Reason and the Unfounded Constitution

In Gerald Russello’s account of Russell Kirk’s Constitutional theory, he conscisely outlines Kirk’s thought on that central concern for conservatives and indeed for all Americans.  As Kirk understood, the Constitution is a great Fact of American experience, whose importance cannot be overlooked; and yet, as any historian could tell us, the trouble with facts is…

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Natural Law, Natural Rights, and the Law of Freedom

It is a great honor to be asked to comment on Gerald Russello’s excellent piece.  A man whose scholarship and wisdom is as high as his integrity is deep, Russello has pioneered much in his own writing and editing and in his profound grasp of the law.  Almost every topic I’ve explored academically has proudly…

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Russell Kirk’s Founders and the Unwritten Constitution

2013 is the 60th year since Regnery Publishing brought Russell Kirk's The Conservative Mind to the reading public.  The book helped transform modern American politics and inform many emerging conservative minds. When I was interning in Washington, DC more than twenty years ago, I remember answering a question by saying that I had a skeletal…

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Partisan Shot

The PartisanWith a title like The Partisan, we should know what to expect.  John Jenkins’s biography on the late Chief Justice loses no chance to paint him in the worst possible light.  Rehnquist is a nihilist, dogmatic, cold, distant, a racist, not a hard worker, and dangerously bound to a desiccated judicial philosophy, unless its results would contradict his desired policy objectives, in which case any legal theory will do.

This gives the flavor, taken almost at random:  “Rehnquist’s judicial philosophy was nihilistic to its core, disrespectful of precedent and dismissive of social, economic, and political institutions that did not comport with his black-and-white view of the world.”  Jenkins also mysteriously knows Rehnquist’s mind; he states, for example, that Rehnquist was “elated” that spies Ethel and Julius Rosenberg were going to be executed.

Yet we do not get an explanation of what this nihilistic judicial philosophy means, only that it must be terrible.  Except when it isn’t, as, for example, when Rehnquist – supposedly a justice who disdains the force of precedent – upheld it in the 2000 Dickerson case, which confirmed the constitutionality of Miranda warnings.  Nor does Jenkins explain Rehnquist’s devotion to precedent in 1992’s Planned Parenthood v Casey.  One may agree to disagree with the decision, but Jenkins offers only the barest interpretations of Rehnquist’s votes, and then only to draw the worst possible inferences.  He favored Miranda warnings, of course, because they help put people in jail faster!

Rehnquist is obviously a significant figure in the law.  His legal philosophy – which despite Jenkins’s distortions, comes across as reasonable and coherent, deserves better treatment than this.

 

Gerald J. Russello is a lawyer and editor of the University Bookman (www.kirkcenter.org)

Searching for Popular Sovereignty

Judicial Monarchs

Judicial Monarchs:  Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways of thinking abut the power of judicial review.  Breyer represents what may be called the judicial supremacist view, the view that is most deeply entrenched among the judicial and legal elites.  William Watkins represents what may be called the coordinated powers approach, an older but, since the early twentieth century, less influential approach.

On the Breyer view, the courts, especially the Supreme Court, have the final say on what the law “is,” and can effectively overrule the other two federal branches and indeed the people themselves.  The high-water mark for this view was the plurality opinion in 1992’s Planned Parenthood v. Casey.  Although the issue in that case was the constitutionality of certain restrictions on abortion, the principle of judicial supremacy that case announced extends far beyond that issue alone.  The Court stated that self-government and judicial supremacy are largely one and the same.  Indeed, for the Court the people’s very “belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.”  In the words of critic Russell Kirk, this position endorses what he called “archonocracy,” rule by judges.

Justice Breyer has characterized the acceptance of judicial supremacy as a “habit” that has developed in the American people, although he finds its inchoate beginnings in decisions like Marbury v. Madison.   This developed habit not only accepts the principle that the Supreme Court must pass on the Constitution’s meaning, but that its interpretation is superior to those of the Congress or the president.  This supremacy must be recognized because only the courts can protect the “rights” it has discerned to exist in the constitutional text; left to the other branches freedom would dissipate under the threat of majoritarian tyranny.  Judicial supremacy is therefore the necessary result of the constitutional design for Breyer even though everyone across the political spectrum can find decisions with which to disagree, and even though there are decisions the Supreme Court itself has disavowed, the infamous 1857 Dred Scott among them.

Despite the historical genealogy Breyer and others have constructed, the widespread acceptance of the Court’s role as final arbiter is of rather recent vintage. Among others, Abraham Lincoln did not think the Supreme Court had the final say on what the Constitution meant, or that it had been entrusted to enunciate constitutional principles “before all others.” In reacting to Dred Scott, Lincoln was clear that although the Supreme Court deserved some deference, as president he too could look at the facts of the case and question the Court’s reasoning.   In his first inaugural, in 1861, Lincoln noted that to bind the other branches of government, based on a decision thought erroneous that arose out of “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.”  In other words, it is not self-evident that one decision by a court, even the Supreme Court, need announce a binding constitutional principle that the other, co-equal branches are bound to obey.  Nor would the judicial supremacist view have satisfied Thomas Jefferson, who wrote in an 1820 letter that:

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him.

On this view, then, judicial supremacy is inconsistent with republican government.  Indeed, it undermines the basic premise of the Constitution that power emanates from the people.  If the Court alone gets to decide the ultimate questions of the Constitution’s meaning, the messy business of politics collapses into the votes of nine (really, five) justices.  Further, the people’s representatives have a convenient, and self-interested, excuse not to fulfill their own constitutional obligations:  let the Court decide!  (Of course, not even the Court really believes in judicial supremacy; the “political questions” doctrine, which permits the Court to sidestep deciding certain issues, remains part of the Supreme Court’s toolbox.)

Watkins rejects the judicial supremacy view, and wants to return the American polity to a more nuanced understanding of what judges should do, and their role in a federal republic.  On his view, all three branches of the federal government are coordinate. That is, they each have a responsibility to interpret the Constitution.  No one branch is superior to the others, although with particular spheres, perhaps, one of the other branches has particular expertise.  The Supreme Court, for example, can say what the law “is,” but it does not have the final say, especially when it is asked to opine on questions far removed from the constitutional text.  The three federal branches share the powers delegated to them in the Constitution.  For Watkins, “judicial independence, to the founding generation, never meant independence from the people.  State and federal judges are not high priests of the constitutional order.  Just like governors, senators, and representatives, judges are mere agents of the people.  When judges begin to make public policy decisions, they rebel against their masters and usurp power.”  We will return to this claim later.

Watkins begins his analysis with an historical overview of the British background to the Constitution, from the Stuarts’ assertion of divine right through the Glorious Revolution to the eve of the Revolution.  Although none of the history is especially new, Watkins highlights several points important for the development of American notions of separation of powers and judicial authority.  Crucially, there was a difference in understanding what sovereignty was.  For the British, sovereignty was in Parliament, or, later, King-in-Parliament.  The colonists early on argued for divided sovereignty, thus preserving their own colonial assemblies as mini-Parliaments, while permitting Parliament to govern in its own sphere of England.  After the Revolution, however, the people rejected the notion of simply replicating parliamentary sovereignty.  In states like Massachusetts, the people reminded their executives through governmental reforms and petitions that power emanates from the people, and that the representatives serve only at their pleasure.  This, according to Watkins, resulted in written constitutions, to preserve popular sovereignty.

What does this have to do with judges?  Well, as Watkins notes, in some colonial states, the judicial function was considered part of the executive, and not a separate branch.  The power to protect rights came not from judges but from the people themselves, who could cashier their representatives through elections.  “Americans knew that power could be abused; however, they did not look to the judiciary to interpose to protect individual rights.  Instead, the people put their trust in juries and institutional safeguards such as bicameralism, delaying veto, term limits, and frequent elections,” not to mention federalism.  Judges served an important, but limited function of ruling on the law.  Although the Marbury decision enshrined judicial review, as Watkins ably explains, this was of a piece with the emerging coordinate view.  The Court, according to Chief Justice Marshall, could rule on constitutional questions, but Marshall did not state that only the Court could decide them.  That it has been so interpreted by later generations of scholars and judges for Watkins represents a grand category mistake.  When combined with the growth of a centralized, rather than truly federal government, judicial supremacy has proceeded unchecked.

Watkins offers some solutions to limit judicial supremacy, such as stripping the Court of jurisdiction to hear certain types of cases, expanding the role of juries (in colonial America, for example, juries decided both the facts and the law), and modifying how federal judges are selected.  Yet is the problem really the Court’s?  Watkins ably diagnoses the growth of judicial power, and its consequences for free government, but that is really only one aspect of the problem.  He leaves out one component:  the judges did not do this to themselves.  Having judges serve as the ultimate authority serves other purposes, including feckless representatives, the media, legal elites in law firms and law schools, and in general those who would prefer a large unitary state rather than a fragmented federal one.  There is no Lincoln these days thundering against Court decisions, and the Congress is more than happy to pass laws and let the Court opine on them later.  There is, in other words, no incentive for anyone to break the “habit” of deference to the Court’s decisions.

The lassitude of these other branches, as much as the vigor of the judicial, is perhaps the more troubling aspect of judicial supremacy.  Only when that changes will some of these other remedial measures Watkins describes become possible.

Judicial Democracy

Making Our Democracy Work

The problem with Justice Breyer’s recent book begins at the second sentence:  “The Constitution’s framers and history itself have made the Court the ultimate arbiter of the Constitution’s meaning as well as the source of answers to as multitude of questions about how this vast, complex country will be governed.”

There is a lot to unpack in that extraordinary claim, including the meaning of “history itself” and how the Court became not only an interpreter of the Constitution but also the “source of answers” for how we live together as citizens of a republic.  But first, a little background.  Justice Breyer has served on the Supreme Court since 1994, when he was nominated by President Clinton and subsequently confirmed.  Prior to that he served for almost fifteen years as an appellate judge on the First Circuit Curt of Appeals, which covers parts of the Northeast.  Although he never practiced in business or in a private law firm (a norm increasingly common across the federal judiciary), he has authored influential works on administrative law, and has become known for a flexible pragmatic approach to judging.

Breyer quickly took a position on the liberal side of the Court, and is often contrasted with Justice Scalia as providing intellectual heft for liberal judges.  An earlier book, Active Liberty, which was published in 2005, advanced the thesis that the goal of courts, especially the Supreme Court, should be to promote democracy, a term he leaves frustratingly undefined.  He continues that theme in Making Our Democracy Work, which tries to explain, largely in layman’s terms, how the Court works and how his own pragmatic approach explains the best traditions of the Court.

Making is divided into three broad sections.  “The People’s Trust” sets out Breyer’s case for holding the Supreme Court as the only institutional organ charged with definitive interpretations of the Constitution; “Decisions that Work” lays out examples of areas in which Breyer believes his theory of judicial review have successfully worked; and the last chapter, “Protecting Individuals” raises questions of individual liberty and government power.

Breyer writes in clear prose, and his book is structured, mostly, around discussion of individual cases for a common reader unused to legal arcana or technical language.  And he wants to address a central point:  how can the Court maintain the confidence of the American people?  He notes for example, that there have been instances in the past, such as the Cherokee displacement cases, where the people did not listen to the Court’s decision.  In others, such as Brown v. Board of Education, other arms of the government needed to enforce the Court’s decision.

The cases he selects are, in some sense, the regular canon of liberal law professors;  Dred Scott, Brown v. Board of Education,  and Korematsu, for example, and ending with recent cases surrounding holding suspected terrorists or enemy combatants at Guantánamo.  There is no mention of Roe v. Wade or Planned Parenthood v. Casey, and no sustained discussion of the Court’s religious liberty jurisprudence or its holdings regarding corporations or substantive due process.  Breyer uses his case examples in a way anyone who went to a liberal law school will recognize:  the nation slowly unfolded to a recognition of the Court’s central role in American legal and political culture, and although Dred is bad (and Lincoln’s opposition to it ultimately bad as well, because it undermines the final authority of the Court), Brown is good and therefore we can take comfort in justifying ever after the Court’s exercises in social engineering.  The difficulty is that Breyer does not explain why – other than appealing to a vague sense of liberal morality – why we should choose one decision over the other, or why, more important, such wrenching cases need to be precedential for the proposition that the Court is the ultimate “source” for all answers regarding how we live in America.  As Breyer realizes, the Court cannot enforce decisions on its own, and the Court does make mistakes, as in Dred.  Breyer simply seems to take as evident that a modern liberal court will be more right than wrong, and so we should continue to abide by all its decisions lest national disaster strike.

Breyer argues that “American public officials and the American public have come to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution.  The public has developed the habit of following the Court’s constitutional interpretations, even those with which it disagrees.  Today we find it as normal to respect the Court’s decisions as to breathe the air around us.”  Breyer considers this subservience to nine unelected officials a step forward for democracy and liberty, and argues that each generation, through proper education, must learn how “our constitutional government works.”  But this assumes too much:  every year millions of people gather to protest one particular decision of the Court that they consider not only unconstitutional but also deeply immoral.  That decision, as Hadley Arkes and others have argued, has actually reduced respect for the Court and its opinions.  This challenge goes unmentioned by Breyer.

To show that the Court must also do its part, Breyer sets out a “pragmatic approach” that focuses on a statute’s purpose and consequences (rather than its text and history) to assist judges.  He distinguishes this from an “originalist” approach because he finds that history gives no true answers and that even if it did, sometimes our (that is, the Court’s) understanding of the underlying values of the Constitution should trump.  But too often a simple preference for government action seeps in.  Breyer would have upheld the Washington DC gun prohibition the Court rejected in Heller because the value ostensibly protected, “life itself,” was too compelling even though as Breyer stated, he could not tell if the ban actually worked.  On the other hand, opponents of Roe equally argue “life itself” is at stake, yet Breyer in this book is silent on how a judge would rule in that case.  Similarly, Breyer dissented from the Court’s 1995 Lopez decision, in which it overruled a law banning guns near schools, the first rejection of Congress’s power under the Commerce Clause in decades.  Although most treated that decision as a victory for federalism and therefore for a system of ordered liberty, Breyer would have deferred to Congress to make the “empirical” determinations of whether such laws affected interstate commerce.  From his study of administrative law, Breyer surely knows the compromises and lobbying that go into such legislation, so his simple trust in Congressional “experts” seems quaintly misplaced here.

Anticipating the objection that no one can assume which values or purposes might have motivated the actual Congress, Breyer posits a “reasonable member of Congress” to which the Court can attribute purpose.  Although Breyer is correct that sometimes Congress will avoid its responsibility to write clear legislation in the hope that the Court will interpret the law for them by deriving some purpose or knowledge of consequences, Breyer’s approach simply agrees to take that responsibility from them, which does not advance either liberty or representative government.  Forcing Congress to write clear statutes might force them to consider the flood of legislation they do pass, which would increase the sphere of liberty for ordinary citizens.  Breyer’s having the Court step in, although beneficial perhaps in individual cases, is not helpful in the long term.

Making presents a vigorous case for a kind of liberal jurisprudence that is perhaps less ideological than that evident in the Warren Court or law school seminars in the 1980s.  However, it does not answer the central question, upon which that liberal jurisprudence is based, as to how deferring to the Court’s decisions advances the cause of liberty or democracy.